Opposition Brief — Gabriel Gray, et al., Petitioners v. Kathy Jennings, Attorney General of Delaware, et al.

No. 24-309

IN THE

Supreme Court of the United States

__________________________________________________

GABRIEL GRAY, ET AL.,

v.

Petitioners,

KATHY JENNINGS, ATTORNEY GENERAL

OF DELAWARE, ET AL.,

Respondents.

__________________________________________________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________________________________________________

BRIEF IN OPPOSITION

__________________________________________________

Kathleen M. Jennings

Zachary Stirparo

DELAWARE DEPARTMENT OF JUSTICE

Carvel State Office

Building

820 N. French Street

6th Floor

Wilmington, DE 19801

(302) 577-8400

David E. Ross

Counsel of Record

Garrett B. Moritz

ROSS ARONSTAM &

MORITZ LLP

1313 North Market

Street

Suite 1001

Wilmington, DE 19801

(302) 576-1602

dross@ramllp.com

Counsel for Respondents

i

QUESTIONS PRESENTED

Petitioners challenge two Delaware gun safety

laws that regulate certain assault weapons and largecapacity magazines. Petitioners assert they “wish” to

obtain these firearms and magazines at some unspecified point in the future, and sought a preliminary injunction on that basis. Pet. 6-7; App. 20a. Petitioners

claim they are not required to make any showing of

irreparable harm as is ordinarily required to obtain a

preliminary injunction because they raised claims under the Second Amendment.

The questions presented are:

1. Whether the court of appeals correctly rejected

Petitioners’ attempt to sidestep the ordinary preliminary-injunction inquiry with a rule of per se irreparable harm for Second Amendment claims.

2. Whether Petitioners lack Article III standing to

challenge either law.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...................................... i

TABLE OF AUTHORITIES .................................... iv

OPINIONS BELOW .................................................. 1

JURISDICTION ........................................................ 1

INTRODUCTION ..................................................... 1

STATEMENT OF THE CASE .................................. 4

Delaware’s legislature enacts two gun

safety bills to regulate certain assault

weapons and large-capacity magazines ....... 4

Plaintiffs wait five months or more to seek

a preliminary injunction based on their

“desire” to acquire restricted assault

weapons ......................................................... 5

The district court denies a preliminary

injunction, finding no likelihood of

success and no irreparable harm.................. 8

Plaintiffs pursue this appeal and put all

district court proceedings on hold .............. 12

The court of appeals affirms, declining

plaintiffs’ request to exempt them from

having to show irreparable harm ............... 12

REASONS FOR DENYING THE PETITION........ 16

I.

There Is No Circuit Split On The Question

Presented. ......................................................... 16

iii

II. This Case Is A Poor Vehicle To Address

The Question Presented. .................................. 22

A. Petitioners do not challenge the Third

Circuit’s other bases for affirmance. .......... 23

B. Petitioners cannot establish standing. ....... 24

III. The Third Circuit’s Decision Is Correct. .......... 29

CONCLUSION ........................................................ 37

iv

TABLE OF AUTHORITIES

Page(s)

Cases

Amoco Prod. Co. v. Vill. of Gambell,

480 U.S. 531 (1987) ..............................................35

Baird v. Bonta,

81 F.4th 1036 (9th Cir. 2023) .................... 2, 18, 19

BE the Bush Recovery Ministries v.

Coffee Cnty.,

No. 22-5391, 2023 WL 110775 (6th

Cir. Jan. 5, 2023) .................................................20

Bevis v. City of Naperville,

85 F.4th 1175 (7th Cir. 2023) .................... 2, 17, 18

Brewer v. W. Irondequoit Cent. Sch. Dist.,

212 F.3d 738 (2d Cir. 2000) .................................21

Bronx Household of Faith v. Bd. of

Educ. of N.Y.C.,

331 F.3d 342 (2d Cir. 2003) .................................21

California v. Rooney,

483 U.S. 307 (1987) ..............................................24

California v. Texas,

593 U.S. 659 (2021) ..............................................25

Cate v. Oldham,

707 F.2d 1176 (11th Cir. 1983)............................22

v

Charette v. Town of Oyster Bay,

159 F.3d 749 (2d Cir. 1998) .................................20

Citibank, N.A. v. Citytrust,

756 F.2d 273 (2d Cir. 1985) .................................32

Covino v. Patrissi,

967 F.2d 73 (2d Cir. 1992) ...................................21

DISH Network Corp. v. FCC,

653 F.3d 771 (9th Cir. 2011)..........................18, 20

District of Columbia v. Heller,

554 U.S. 570 (2008) ..............................................27

Doe v. Univ. of Cincinnati,

872 F.3d 393 (6th Cir. 2017)................................20

Drummond v. Robinson Twp.,

9 F.4th 217 (3d Cir. 2021)..............................11, 26

eBay Inc. v. MercExchange, L.L.C.,

547 U.S. 388 (2006) ........................................33, 35

Elrod v. Burns,

427 U.S. 347 (1976) ..............................................34

Ezell v. City of Chicago,

651 F.3d 684 (7th Cir. 2011)................................17

Free the Nipple-Fort Collins v. City of

Fort Collins,

916 F.3d 792 (10th Cir. 2019)..............................19

FW/PBS, Inc. v. City of Dallas,

493 U.S. 215 (1990) ..............................................28

vi

Jolly v. Coughlin,

76 F.3d 468 (2d Cir. 1996) ...................................21

Joseph v. United States,

135 S. Ct. 705 (2014)............................................18

June Med. Servs. L.L.C. v. Russo,

591 U.S. 299 (2020) ..............................................27

Lujan v. Defs. of Wildlife,

504 U.S. 555 (1992) ........................................24, 28

Maryland v. King,

567 U.S. 1301 (2012) ............................................15

Mitchell v. Cuomo,

748 F.2d 804 (2d Cir. 1984) .................................21

Murthy v. Missouri,

603 U.S. 43 (2024) .................................... 24, 26, 27

N.Y. State Rifle & Pistol Ass’n, Inc. v.

Bruen,

597 U.S. 1 (2022) .................................. 9, 10, 11, 34

Ne. Fla. Chapter of Associated Gen.

Contractors of Am. v. City of Jacksonville,

508 U.S. 656 (1993) ..............................................28

Newsom v. Norris,

888 F.2d 371 (6th Cir. 1989)................................22

O Centro Espirita Beneficiente Uniao do

Vegetal v. Ashcroft,

389 F.3d 973 (10th Cir. 2004)..............................36

vii

Open Top Sightseeing USA v. Mr.

Sightseeing, LLC,

48 F. Supp. 3d 87 (D.D.C. 2014) ..........................32

Rocky Mountain Gun Owners v. Polis,

121 F.4th 96 (10th Cir. 2024) ..............................19

Roman Cath. Diocese of Brooklyn v. Cuomo,

592 U.S. 14 (2020) ................................................34

Shaffer v. Globe Prot., Inc.,

721 F.2d 1121 (7th Cir. 1983)..............................32

Standard Drywall, Inc. v. United States,

668 F.2d 156 (2d Cir. 1982) .................................21

Starbucks Corp. v. McKinney,

602 U.S. 339 (2024) ........................................30, 32

Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83 (1998) ................................................24

Students for Fair Admissions, Inc. v.

President & Fellows of Harvard Coll.,

600 U.S. 181 (2023) ..............................................29

Summers v. Earth Island Inst.,

555 U.S. 488 (2009) ..............................................29

Susan B. Anthony List v. Driehaus,

573 U.S. 149 (2014) ............................ 25, 26, 27, 28

Teixeira v. Cnty. of Alameda,

873 F.3d 670 (9th Cir. 2017)................................26

viii

The Monrosa v. Carbon Black Exp., Inc.,

359 U.S. 180 (1959) ..............................................24

Trump v. Hawaii,

585 U.S. 667 (2018) ..............................................30

Uzuegbunam v. Preczewski,

592 U.S. 279 (2021) ........................................33, 34

Va. House of Delegates v. Bethune-Hill,

587 U.S. 658 (2019) ..............................................24

Winter v. Nat. Res. Def. Council, Inc.,

555 U.S. 7 (2008) ................................ 13, 23, 30, 36

Statutes

28 U.S.C. § 1254(1)......................................................1

Del. Code tit. 11,

§ 1448 ...................................................................28

§ 1448A .................................................................28

§ 1464 .....................................................................4

§ 1465 .....................................................................4

§ 1466 .....................................................................4

§ 1466(a) .................................................................4

§ 1466(b) .................................................................4

§ 1466(c) .................................................................5

ix

§ 1467 .....................................................................4

§ 1468(2) .................................................................5

§ 1469(a) .................................................................5

§ 1469(c) .................................................................5

§ 1469(d) .................................................................5

Other Authorities

2 Joseph Story, Commentaries on

Equity Jurisprudence as

Administered in England and

America (2d ed. 1839) ..........................................30

The Federalist No. 83 (Alexander

Hamilton) (Clinton Rossiter ed., 1961) ...............13

1

OPINIONS BELOW

The court of appeals’ decision is reported at 108

F.4th 194 and reproduced at App. 1a-52a. The district

court’s order denying plaintiffs’ motion for a preliminary injunction is reported at 664 F. Supp. 3d 584 and

reproduced at App. 53a-92a.

JURISDICTION

The judgment of the court of appeals was entered

on July 15, 2024. No petition for rehearing was filed.

The petition for a writ of certiorari was filed on September 16, 2024. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

INTRODUCTION

This Petition arises from Petitioners’ unsuccessful request for preliminary injunctive relief barring

enforcement of a package of gun safety bills enacted

by Delaware. Several plaintiffs (including Petitioners) attempted to obtain a preliminary injunction

based solely on a handful of declarations stating that

some of them “wish to obtain … firearms [or] magazines” that the Delaware laws restrict. App. 20a. The

plaintiffs “put on no live witnesses, nor did they offer

any evidence that Delaware had tried to enforce these

laws or take away their magazines.” App. 4a. Indeed,

“[t]hey offered no details about how they would be

harmed.” Id.

Petitioners argued that they were not required to

make the showing of irreparable harm ordinarily required to obtain the extraordinary equitable remedy

2

of a preliminary injunction. Rather, they believed the

courts should “lift that burden from their shoulders

by presuming all constitutional harms irreparable.”

App. 16a. The courts below refused to do so. This

Court’s review is unwarranted for several reasons.

First, there is no circuit split. No circuit subscribes to Petitioners’ position that “the infringement

of Second Amendment rights constitutes per se irreparable injury,” Pet. 11 (capitalization omitted)—certainly not the Seventh and Ninth Circuits, as

Petitioners assert. The Seventh Circuit explicitly

“save[d]” this exact question “for another day.”

Bevis v. City of Naperville, 85 F.4th 1175, 1203 (7th

Cir. 2023). And the Ninth Circuit held only that a

likely constitutional violation will “usually,” not always, constitute irreparable harm. Baird v. Bonta, 81

F.4th 1036, 1040, 1048 (9th Cir. 2023). Petitioners’ effort to depict “conflict and confusion” in other constitutional contexts (Pet. 25; see also Pet. 24-28) is

unpersuasive and, in any event, does not merit this

Court’s review of the question Petitioners present.

Second, this case is not an appropriate vehicle to

address the question Petitioners present. The court of

appeals offered an alternative ground for affirming

the denial of the preliminary injunction, and Petitioners have not challenged that ground here: The court

of appeals held, “[e]ven if the challengers had shown

an irreparable injury, the third and fourth” preliminary injunction factors would still “weigh against a

preliminary injunction.” App. 21a. Thus, even if the

Court were to agree with Petitioners’ argument about

irreparable harm, such a ruling would afford Petitioners no relief. Moreover, Petitioners have failed to

3

establish the basic jurisdictional requirement of Article III standing. Petitioners can point to no evidence

of a concrete, imminent injury traceable to government enforcement of the challenged laws based on a

plan to engage in prohibited conduct.

Third, and in any event, the court of appeals was

correct to reject Petitioners’ attempt to create a loophole in the preliminary-injunction standard for the

Second Amendment, or for all constitutional claims.

As the Third Circuit’s thorough and well-reasoned

opinion explained, preliminary injunctions are

“[e]xtraordinary [r]emedies” derived in equity, and

they require “great[] caution, deliberation, and sound

discretion.” App. 5a, 8a. Preliminary injunctions are

designed “to keep cases alive until trial,” App. 10a, not

to force courts to prejudge the merits of a case through

a “limited ‘evidentiary record’” and a “hasty process,”

as Petitioners asked the lower courts to do here, App.

4a, 9a.

In fact, Petitioners’ approach here is the quintessential opposite of what a preliminary injunction is

for: After sitting on their hands for months, Petitioners presented their case in an emergency posture, insisting they were entitled to a ruling on the merits on

the basis of virtually no evidence at all—precisely the

type of “rushed judgment” the Third Circuit warned

against. App. 15a. Then, they put the district court

proceeding on ice—where it remains now—hoping to

persuade the court of appeals to issue a premature

ruling on the merits. And when that gambit failed,

they now urge this Court to issue a categorical legal

rule that virtually requires appellate courts to resolve

the merits of any constitutional claim before trial. All

4

of this is inconsistent with the traditional role of a

preliminary injunction and with measured consideration of important constitutional issues.

This Court should deny the Petition.

STATEMENT OF THE CASE

Delaware’s legislature enacts two gun safety

bills to regulate certain assault weapons and

large-capacity magazines

In June 2022, Delaware’s legislature enacted a

package of gun safety bills to regulate assault weapons and large-capacity magazines. App. 54a-55a. The

first of the laws, HB 450, “makes numerous ‘assault

weapons’ illegal, subject to certain exceptions.” App.

57a (quoting Del. Code tit. 11, §§ 1464-1467). Among

the list of prohibited firearms are various semi-automatic “‘assault long gun[s],’ including the AR-15, AK47, and Uzi,” several “semi-automatic ‘assault pistol[s],’” and certain “copycat” semi-automatic weapons. Id. (quoting Del. Code tit. 11, § 1465).

HB 450 “prohibits the manufacture, sale, offer to

sell, purchase, receipt, transfer, possession or transportation of these weapons, subject to certain exceptions, including for military and law-enforcement

personnel (including qualified retired law-enforcement personnel).” Id. (quoting Del. Code tit. 11,

§ 1466(a), (b)). “People who possessed or purchased

assault weapons before the statute became effective

can continue to possess and transport them under certain conditions, including (i) at their residence and

place of business, (ii) at a shooting range, (iii) at gun

5

shows, and (iv) while traveling between any permitted places. They can also transfer them to family

members.” App. 57a-58a (quoting Del. Code tit. 11,

§ 1466(c)).

The second law, “SS 1 for SB 6,” “makes it illegal

‘to manufacture, sell, offer for sale, purchase, receive,

transfer, or possess a large-capacity magazine.’” App.

58a (quoting Del. Code tit. 11, § 1469(a)). “‘Large-capacity magazine[s]’ are those ‘capable of accepting, or

that can readily be converted to hold, more than 17

rounds of ammunition.’” Id. (quoting Del. Code tit. 11,

§ 1468(2)). This statute similarly exempts military

and law-enforcement personnel, “along with individuals who have a valid concealed carry permit.” Id. (citing Del. Code tit. 11, § 1469(c)). While the statute

“does not grandfather any magazines,” it requires the

State “to implement a buy-back program.” Id. (citing

Del. Code tit. 11, § 1469(d)).

Plaintiffs wait five months or more to seek a

preliminary injunction based on their “desire”

to acquire restricted assault weapons

Almost five months after the legislature passed

the two bills, several plaintiffs sought a preliminary

injunction against the laws in two actions. C.A.3

App’x 283, 629. 1 These plaintiffs included Petitioners

Gabriel Gray, William Taylor, DJJAMS LLC, Firearms Policy Coalition, Inc., and Second Amendment

1 “C.A.3 App’x” refers to the plaintiff-appellants’ appendix

in Delaware State Sportsmen’s Ass’n, Inc. v. Delaware Department of Safety & Homeland Security, No. 23-1633 (3d Cir. July

3, 2023), ECF Nos. 30-1 – 30-3.

6

Foundation (“Gray Petitioners”), who moved for a preliminary injunction against the assault weapons law

only. See C.A.3 App’x 629; Op. Br. ISO Mot. for Preliminary Injunction at 1, Gray v. Jennings, No. 22-cv01500 (D. Del. Nov. 22, 2022), ECF No. 5. Petitioners

Christopher Graham and Owen Stevens later filed a

third lawsuit, which Firearms Policy Coalition and

Second Amendment Foundation also joined as coplaintiffs (together, “Graham Petitioners”). They

joined the Gray Petitioners’ motion to enjoin the assault weapons law four months after it was filed.

C.A.3 App’x 595-96. Delaware State Sportsmen’s Association, Inc. (DSSA) and other plaintiffs who have

not sought certiorari moved for a preliminary injunction against both the assault weapons law and the

large-capacity magazine law. C.A.3 App’x 283. All

three lawsuits were consolidated in the district court.

App. 56a.

Plaintiffs’ lawsuits made several common contentions. They argued that the Delaware statutes violate

their Second Amendment “individual right to keep

and bear common arms.” C.A.3 App’x 600-01. They asserted that the laws have mislabeled firearms “in

common use for lawful purposes” as “‘assault weapons.’” C.A.3 App’x 601. They similarly alleged that

“large-capacity magazines” “is a misnomer” and that

“[m]agazines capable of holding more than 17 rounds

of ammunition” are “a common and important means

of self-defense.” C.A.3 App’x 640 (cleaned up).

Plaintiffs also made similar allegations as to how

the laws affected them. For example, Second Amendment Foundation alleged that its members “desire

and intend to acquire, possess, and lawfully use

7

semiautomatic firearms banned by Delaware” and

that “[b]ased on the threat of felony prosecution by

and through Delaware’s Ban,” “SAF’s Delaware resident members have been prevented from, inter alia,

possessing, acquiring, importing, transporting, selling, receiving or lawfully using banned ‘assault weapons.’” C.A.3 App’x 625. DJJAMS alleged “[m]any

customers and prospective customers of [p]laintiff

DJJAMS are interested in, have, and continue to seek

to purchase constitutionally protected firearms

banned by Delaware,” and that DJJAMS “would

make available for sale and transfer to its customers”

the restricted assault weapons but for the law. C.A.3

App’x 622.

Similarly, the individual plaintiffs broadly alleged that they “wish to engage in” conduct that might

violate the statutes. C.A.3 App’x 602-03; see, e.g.,

C.A.3 App’x 622. Plaintiffs’ complaints did not claim

any imminent threat of enforcement of the laws

against them, nor did they assert a time-sensitive

need for the restricted weapons.

In support of their motion for a preliminary injunction, plaintiffs submitted a handful of declarations. These declarations included just two from

Petitioners here. Petitioner William Taylor, the only

individual Petitioner to submit a declaration, declared that “I do not currently own but desire to own

firearms that Delaware has banned as ‘assault weapons,’ specifically an AK design rifle, a commonlyowned type of rifle, for self-defense, hunting, and

other lawful purposes. But for the Ban and my reasonable fear of serious criminal prosecution for a violation of it, I would purchase and lawfully use such a

8

firearm.” C.A.3 App’x 296. Petitioner DJJAMS declared that “[a]s a consequence of the Ban, DJJAMS

has had to turn away customers,” and “[b]ut for the

Ban and [DJJAMS’s] reasonable fear of serious criminal prosecution,” DJJAMS “would sell and assist customers in effecting lawful transfers of such firearms.”

C.A.3 App’x 293.

The district court denies a preliminary

injunction, finding no likelihood of success and

no irreparable harm

From the beginning, plaintiffs pushed to use the

preliminary-injunction vehicle to force a rushed,

emergency decision on the merits of their Second

Amendment claims. Delaware in fact offered to forego

a preliminary-injunction hearing and proceed directly

to an expedited trial on the merits to obtain “a definitive final resolution [on the merits] efficiently and

quickly.” Dec. 20, 2022 Tr. at 11:3-5, Del. State Sportsmen’s Ass’n, Inc. v. Del. Dep’t of Safety & Homeland

Sec., No. 22-cv-00951 (D. Del. Jan. 19, 2023), ECF No.

30. Plaintiffs declined, preferring a preliminary-injunction proceeding without an “evidentiary hearing”

or “expert or other evidence adduced through traditional party discovery methods.” Dec. 5, 2022 Letter

at 2-3, Del. State Sportsmen’s Ass’n, No. 22-cv-00951

(D. Del. Dec. 5, 2022), ECF No. 17.

Plaintiffs put on a bare-bones case for a preliminary injunction. They “put on no live witnesses, nor

did they offer any evidence that Delaware had tried

to enforce these laws or take away their magazines.”

App. 4a. Aside from the handful of declarations just

described, “[t]hey offered no details about how they

9

would be harmed,” id., and scant evidence on the merits of their Second Amendment claim, App. 54a n.2,

79a.

Delaware, by contrast, “present[ed] a robust evidentiary record, including declarations from five expert witnesses,” four of whom addressed the history

of weapon development and regulation in the United

States. App. 54a n.2. Plaintiffs neither offered contrary expert evidence nor sought to examine Delaware’s experts. Instead, plaintiffs claimed that

“historical regulations [we]re immaterial.” Defendants-Appellees’ Suppl. App’x at 919, Del. State Sportsmen’s Ass’n, No. 23-1633 (3d Cir. Aug. 16, 2023), ECF

No. 65. According to plaintiffs, the only relevant question was whether assault weapons and LCMs “are ‘in

common use’ for lawful purposes.” Id. at 909. Plaintiffs left Delaware’s evidentiary record unrebutted.

Based on this record, the district court denied the

preliminary injunction. App. 54a. The court held that

plaintiffs had “failed to meet their burden of establishing the first two preliminary injunction factors:

(1) likelihood of success on the merits, and (2) irreparable harm in the absence of a preliminary injunction.” App. 59a.

With respect to likelihood of success on the merits, the court took up plaintiffs’ request to issue a decision on the lopsided record the parties had

presented. The court found that although some of the

regulated arms “are in common use for self-defense,

and therefore ‘presumptively protected’ by the Second

Amendment,” App. 71a, 74a-75a (quoting N.Y. State

Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 17

10

(2022)), Delaware had met its burden to show that the

regulations were “consistent with the Nation’s historical tradition of firearm regulation.” App. 75a (quoting Bruen, 597 U.S. at 24). Based on “the current

evidentiary record,” App. 80a, the court found “that

Defendants ha[d] sufficiently established that assault

long guns and [large-capacity magazines] implicate

dramatic technological change and unprecedented societal concerns for public safety.” App. 82a. The court

then reviewed the historical analogues to the Delaware regulations and found that “these historical regulations are ‘relevantly similar’ to the regulations at

issue in the two ‘central’ respects identified by the Supreme Court: They impose comparable burdens on the

right of armed self-defense, and those burdens are

comparably justified.” App. 86a (citing Bruen, 597

U.S. at 29). Accordingly, the court held “that the …

prohibitions of HB 450 and SS 1 for SB 6 are consistent with the Nation’s historical tradition of firearm regulation” and plaintiffs had failed to

demonstrate a likelihood of success on the merits.

App. 88a.

The district court recognized that given

“[p]laintiffs[’] fail[ure] to meet their burden for likelihood of success on the merits, a finding of irreparable

harm cannot help [p]laintiffs here,” as “[b]oth factors

are required for a preliminary injunction.” App. 89a

n.17. “[F]or thoroughness,” the court nonetheless addressed the irreparable-harm element. Id. The court

rejected plaintiffs’ claim that “an alleged deprivation

of a Second Amendment right … automatically constitute[s] irreparable harm.” App. 90a.

11

Applying the standard test for irreparable harm,

the court concluded that “[p]laintiffs have not satisfied their burden of proving irreparable harm in the

absence of a preliminary injunction.” Id. The court

first addressed plaintiffs’ claim that they will suffer

irreparable harm because the laws “prevent

[p]laintiffs from possessing assault weapons and

[large-capacity magazines] ‘for self-defense and other

lawful purposes.’” Id. The court held this claim was

insufficient to establish irreparable harm because

“[p]laintiffs retain ample effective alternatives, especially with respect to the ‘core’ purpose of self-defense.” Id. That was especially so because the laws

“regulate[] only a subset of semi-automatic weapons,”

which are “seldom used for self-defense.” Id. Largecapacity magazines “are not useful for self-defense either.” Id. Thus, plaintiffs remain free to avail themselves of “numerous other firearms, including

handguns—the ‘quintessential self-defense weapon.’”

Id. (quoting Bruen, 597 U.S. at 47). In short,

“[p]laintiffs have furnished no evidence that [] they

cannot adequately defend themselves without the

regulated weapons, or, indeed, that their ability to

self-defend has been meaningfully diminished.” App.

91a.

The district court also addressed plaintiffs’ claim

to irreparable harm because “the statutes restrict

their ability to sell assault weapons and [large-capacity magazines], resulting in lost business opportunities.” App. 91a. The court emphasized that “no court

has held ‘that the Second Amendment secures a

standalone right to sell guns or range time.’” Id. (quoting Drummond v. Robinson Twp., 9 F.4th 217, 230 (3d

Cir. 2021)). Moreover, plaintiffs’ bare assertion of

12

prospective business loss was unconvincing, as plaintiffs “remain free to sell the multitude of firearms that

are unaffected by the challenged statutes.” Id.

Plaintiffs pursue this appeal and put all district

court proceedings on hold

After the district court denied the preliminary injunction in March 2023, the court “started preparing

for a November 2023 trial.” App. 5a. Plaintiffs, however, decided to pursue this appeal, electing to “put

the District Court proceedings on hold.” Id. Plaintiffs

stipulated to stay all proceedings “pending the final

resolution of the [a]ppeal,” including “any certiorari

proceedings.” Apr. 12, 2023 Joint Stipulation at 3,

Del. State Sportsmen’s Ass’n, No. 22-cv-00951 (D. Del.

Apr. 12, 2023), ECF No. 67. As a result, the district

court removed the November 2023 trial dates from its

calendar.

The court of appeals affirms, declining

plaintiffs’ request to exempt them from having to

show irreparable harm

In the Third Circuit, plaintiffs again argued that

they had shown a likelihood of success on the merits

of their Second Amendment claims and, accordingly,

“they should get an injunction because all constitutional harm is supposedly irreparable and the equities and public interest track the merits.” App. 5a.

The court of appeals disagreed, because “that is not

how equity works.” Id. “Preliminary injunctions are

not automatic. Rather, tradition and precedent have

long reserved them for extraordinary situations.” Id.

13

And the court of appeals found “nothing extraordinary here” warranting a preliminary injunction. Id.

Writing for the three-judge panel, Judge Bibas reviewed the history of the preliminary injunction as an

equitable remedy, highlighting that the primary use

of equitable powers was “to give relief in extraordinary cases, which are exceptions to general rules.”

App. 6a (quoting The Federalist No. 83, at 505 (Alexander Hamilton) (Clinton Rossiter ed., 1961)). The

court emphasized that preliminary injunctions “were

and still are extraordinary relief,” and highlighted

some of the “problems” preliminary injunctions raise,

including that they are “granted hurriedly and on the

basis of very limited evidence.” App. 7a-8a. This

“hasty process makes the district court jump to conclusions” and “risks prejudging” the merits before the

trial process. App. 9a. The court also emphasized that

the “primary purpose” of a preliminary injunction is

“to keep cases alive until trial,” and that the secondary goal of “[p]reventing interim harm” is in fact “at

the service of preserving the case.” App. 10a-11a. As

a result, “the threat of irreparable harm does not automatically trigger a preliminary injunction.” App.

12a.

The court rejected plaintiffs’ attempt to “sidestep

[the preliminary injunction] framework” set forth in

Winter v. Natural Resources Defense Council, Inc., 555

U.S. 7 (2008). App. 13a. The court disagreed that “in

constitutional cases, a likelihood of success on the

merits is enough.” Id. The court offered five reasons

to reject that proposal: (1) a preliminary injunction “is

a matter of equitable discretion,” but equity would fall

out of the equation if likelihood of success were

14

enough; (2) plaintiffs’ proposal would impose a rigid

test that would “disbar” a district court from exercising its equitable discretion; (3) treating a preliminary

injunction “as rising and falling with the merits” ignores the other “piece[s] of the puzzle,” all of which

must be weighed in equity; (4) plaintiffs’ rule would

force courts to “prejudge the merits” in every case involving a constitutional right, which is contrary to

this Court’s precedents that have “overturned an injunction based solely on the balance of equities and

the public interest”; and (5) plaintiffs’ rule “presumes

clarity early on,” which is seldom the case at the outset of litigation. App. 14a-15a. As the court put it, “[a]

rushed judgment is a dangerous one; judges must be

humble enough to stay their hands.” App. 15a.

The court recognized that there were circumstances under which courts presume irreparable

harm, namely in the First Amendment context. App.

16a. But “[p]resuming irreparable harm is the exception, not the rule.” Id. The court “declined” to extend

that exception, because it is based on “[u]nique First

Amendment doctrines” not applicable here. App. 17a18a. The court thus held plaintiffs to the requirement

to demonstrate “that, without a preliminary injunction, they will more likely than not suffer irreparable

injury while proceedings are pending.” App. 19a.

The court agreed with the district court that

“[w]ithout a presumption in their favor, the challengers’ claim of irreparable harm collapses.” App. 19a.

Plaintiffs had “submitted only four declarations from

Delaware residents who ‘wish to obtain these firearms and magazines.’” App. 20a. “They do not even

allege that Delaware has tried to enforce the disputed

15

laws against them or to seize the guns or magazines

that they already own. Nor do they allege a time-sensitive need for such guns or magazines. This status

quo shows no signs of changing.” Id. As a result, “the

challengers’ generalized claim of harm is hardly

enough to call for this ‘extraordinary and drastic remedy.’” Id. The court emphasized that it was “not

hold[ing] that Second Amendment harms, or constitutional harms generally, cannot be irreparable.” App.

21a. However, “the scant evidence before [it] here

hardly show[ed] that [plaintiffs’] harm is.” Id.

The court went on to hold that even if the plaintiffs had shown an irreparable injury, “the third and

fourth factors”—“harm to the opposing party and the

public interest”—“would weigh against a preliminary

injunction” for two separate reasons. App. 21a. First,

the requested relief would “enjoin enforcement of two

democratically enacted state laws.” Id. Particularly in

the context of federal court review of state laws,

“[c]ourts rightly hesitate to interfere with exercises of

executive or legislative authority.” App. 21a-22a. Enjoining democratically enacted statutes creates “a

form of irreparable injury” for states. App. 22a (quoting Maryland v. King, 567 U.S. 1301, 1303 (2012)

(Roberts, C.J., in chambers)). The court found itself

bound to “err on the side of respecting state sovereignty,” at least “[w]ithout the clarity of a full trial on

the merits.” Id.

Second, plaintiffs delayed seeking a preliminary

injunction by several months and then compounded

the delay by putting the rest of the case on hold pending this appeal. App. 22a-23a. That “continuing delay”

16

“tends to indicate at least a reduced need for such

drastic, speedy action.” Id.

The court declined plaintiffs’ request to evaluate

the merits of their Second Amendment claims on the

limited preliminary-injunction record. App. 23a-24a.

After the Third Circuit issued its mandate, the

district court requested a status update from the parties. While some plaintiffs expressed a desire for discovery, followed by a motion for summary judgment,

Petitioners did not, preferring to leave the merits case

on ice. Aug. 12, 2024 Letter at 1-2, Del. State Sportsmen’s Ass’n, No. 22-cv-00951 (D. Del. Aug. 12, 2024),

ECF No. 70.

REASONS FOR DENYING THE PETITION

I.

There Is No Circuit Split On The Question

Presented.

Petitioners argue that the Third Circuit created a

circuit split “over whether the infringement of Second

Amendment rights constitutes per se irreparable injury.” Pet. 11 (capitalization omitted). And then they

contend that “there is much conflict and confusion”

about whether violations of other constitutional provisions inflict per se irreparable harm. Pet. 25. Neither argument has merit.

A. The problem with Petitioners’ circuit split argument is that neither circuit they invoke—neither

the Seventh nor the Ninth—takes the position they

attribute to it: that “infringement of Second

17

Amendment rights necessarily constitutes irreparable injury.” Pet. 12 (capitalization omitted).

The Seventh Circuit has expressly “save[d] … for

another day” the question “whether an alleged Second

Amendment violation gives rise to a presumption of

irreparable harm,” and if so, “whether any such presumption is rebuttable or ironclad.” Bevis v. City of

Naperville, 85 F.4th 1175, 1202-03 (7th Cir. 2023).

Petitioners ignore Bevis. Instead, they argue that

the Seventh Circuit answered that question 12 years

earlier in Ezell v. City of Chicago, 651 F.3d 684 (7th

Cir. 2011), and concluded that there was a per se rule.

Pet. 12. Ezell established no such categorical rule,

however. On the contrary, Ezell stressed that the

plaintiffs’ irreparable harm turned on case-specific

facts about the “form of the claim and the substance

of the Second Amendment right”—facts vastly different from Petitioners’ claims here. 651 F.3d at 700; see

id. at 699 & n.10; id. at 689-91, 697-99 (emphasizing,

among other things, the scope of the challenged regulation, which “mandate[d] one hour of range training

as a prerequisite to lawful gun ownership, yet at the

same time prohibit[ed] all firing ranges in the city”

(citation omitted)).

The majority opinion in Bevis discussed Ezell

throughout, see Bevis, 85 F.4th at 1187, 1189, 1191,

and the dissent even cited Ezell in arguing that “a violation of the Second Amendment right presumptively causes irreparable harm,” id. at 1219 (Brennan,

J.). In declining to “decide” that question, the Bevis

majority necessarily recognized that Ezell does not

answer whether a Second Amendment violation is per

18

se irreparable harm. Id. at 1202. Even if Ezell could

be read to support Petitioners’ per se rule, however,

that would at most suggest an intra-circuit conflict

with Bevis. That may warrant the Seventh Circuit’s

en banc consideration. But it would not support this

Court’s review. See Joseph v. United States, 135 S. Ct.

705, 707 (2014) (Kagan, J., respecting denial of certiorari) (“we usually allow the courts of appeals to clean

up intra-circuit divisions on their own”).

Petitioners likewise miss the mark in asserting

(at 13) that the Ninth Circuit adopted a per se irreparable harm standard in Baird v. Bonta, 81 F.4th

1036 (9th Cir. 2023). Baird held only that where there

is a violation of a constitutional right, “that showing

usually demonstrates that [the plaintiff] is suffering

irreparable harm.” Id. at 1040 (emphasis added).

“Usually” does not mean “always.” Indeed, the

Ninth Circuit made clear that “it ‘is not enough’ to

grant a preliminary injunction if a movant shows only

that he is likely to succeed on the merits.” Id. at 1045

(quoting DISH Network Corp. v. FCC, 653 F.3d 771,

776 (9th Cir. 2011)). And the court emphasized that,

unlike here, the Baird plaintiffs had “not argue[d]

that their likelihood of success on the merits in isolation is necessarily enough to warrant an injunction.”

Id. (emphasis added); compare App. 13a-14a (“the

challengers … argue that … a likelihood of success on

the merits is enough”). Accordingly, rather than treat

a likely Second Amendment violation as per se irreparable harm, the Ninth Circuit held that the district

court must still “analyze[] each” of the equitable preliminary injunction factors, even if the plaintiffs

19

“showed that they [were] likely to succeed on the merits of their claim.” Baird, 81 F.4th at 1048.

In short, neither the Seventh nor the Ninth Circuit has held that a Second Amendment violation “inevitably amount[s] to irreparable injury.” Contra Pet.

11. And there is no reason to believe either court

would find irreparable harm on the specific facts of

this case, where Petitioners evinced “little need to

move quickly,” App. 23a, “furnished no evidence …

that their ability to self-defend has been meaningfully

diminished,” App. 91a, and identified no “harms beyond ones that can be cured after final judgment,”

App. 20a. 2

B. Equally unavailing is Petitioners’ fallback argument—that there is much “[c]onflict and [c]onfusion” over the extent to which courts treat violations

of other constitutional provisions as per se irreparable

harm. Pet. 24. As an initial matter, even if there were

confusion in these other contexts, it would not support

granting review on the question presented, which is

limited to “[w]hether the infringement of Second

2 The Tenth Circuit’s recent decision in Rocky Mountain

Gun Owners v. Polis, 121 F.4th 96 (10th Cir. 2024), does not support Petitioners’ asserted split, either. Rocky Mountain observed

that “[m]ost courts consider the infringement of a constitutional

right enough and require no further showing of irreparable injury.” Id. at 128 (quoting Free the Nipple-Fort Collins v. City of

Fort Collins, 916 F.3d 792, 805 (10th Cir. 2019)). But Rocky

Mountain did not reach the question whether the asserted Second Amendment violation had caused irreparable harm, because

the plaintiff “ha[d] not established a likelihood of success on his

Second Amendment claim.” Id.

20

Amendment rights constitutes per se irreparable injury.” Pet. i (first emphasis added).

Petitioners overstate any such “conflict and confusion” among the lower courts. At most, some circuits

may “presume[] harm in various settings” while others do not. App. 17a. But no court has advanced the

per se categorical harm rule Petitioners espouse. Rather, like Ezell and Baird, they turn on case-specific

facts about the nature of each plaintiff’s claimed

harms and the specific constitutional rights at issue.

For example, Petitioners assert that the Second,

Sixth, and Ninth Circuits apply a per se harm standard “universally in any constitutional challenge.” Pet.

25. Not so. The Second Circuit has held that “often” it

“will be more appropriate to determine irreparable injury by considering what adverse factual consequences the plaintiff apprehends if an injunction is

not issued.” Charette v. Town of Oyster Bay, 159 F.3d

749, 755 (2d Cir. 1998). The Sixth Circuit likewise

only presumes harm from “certain constitutional” violations, BE the Bush Recovery Ministries v. Coffee

Cnty., No. 22-5391, 2023 WL 110775, at *2 (6th Cir.

Jan. 5, 2023) (emphasis added), and even then, the

presumption may be “rebut[ted]” by case-specific

facts, Doe v. Univ. of Cincinnati, 872 F.3d 393, 407

(6th Cir. 2017) (emphasizing plaintiff’s reputational

harm if unconstitutional action were not enjoined).

And, as noted above, the Ninth Circuit has no universal per se harm standard, either. See DISH Network,

653 F.3d at 776.

Petitioners are also incorrect in arguing (at 25-26)

that circuits apply a categorical per se harm standard

21

to specific constitutional provisions outside the First

Amendment context. Not one of the circuits Petitioners invoke embraces a per se rule—for any constitutional provision. For instance, in a Fourth

Amendment case Petitioners cite, Covino v. Patrissi,

967 F.2d 73, 77 (2d Cir. 1992), the Second Circuit

found irreparable harm in a particular context, involving “random visual body-cavity searches.” Id. at

75; see id. at 77. But that same court has “seriously

question[ed]” the irreparable harm showing in other

Fourth Amendment contexts. Standard Drywall,

Inc. v. United States, 668 F.2d 156, 157 n.2 (2d Cir.

1982). The Equal Protection-based irreparable harm

in Brewer v. West Irondequoit Central School District,

212 F.3d 738 (2d Cir. 2000) (cited at Pet. 25), likewise

turned on the “unique and somewhat outrageous

facts” of that case. Id. at 745. The Eighth Amendment-related harm in Mitchell v. Cuomo, 748 F.2d 804

(2d Cir. 1984) (cited at Pet. 26), was similarly based

on “evidence of … potentially dangerous consequences” of the claimed violation. Id. at 806; see Jolly

v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) (cited at

Pet. 25) (“presum[ing]” Eighth Amendment harm

where plaintiff was kept in “medical keeplock” around

the clock except for a ten-minute shower once a week).

Nor do Petitioners identify any meaningful “disagree[ment]” among the circuits “over whether only

certain types of constitutional claims are per se irreparable.” Contra Pet. 26. Petitioners assert that the

Sixth and Eleventh Circuits disagree with the Second

Circuit’s holding that in the First Amendment context, only “a rule or regulation that directly limits

speech” generates per se irreparable harm. Id. (quoting Bronx Household of Faith v. Bd. of Educ. of

22

N.Y.C., 331 F.3d 342, 349-50 (2d Cir. 2003)). But both

have embraced that same rule. See Cate v. Oldham,

707 F.2d 1176, 1188 (11th Cir. 1983) (only “direct penalization, as opposed to incidental inhibition, of First

Amendment rights constitutes irreparable injury”);

accord Newsom v. Norris, 888 F.2d 371, 378 (6th Cir.

1989).

Petitioners conclude by arguing that there is “confusion” about the theory underlying the per se “principle” and that the Third Circuit and others

improperly “collaps[e] the four [injunction] factors

into one.” Pet. 27-28. But it was Petitioners, not the

Third Circuit, who sought to collapse the four factors.

See, e.g., C.A.3 Reply Brief at 25, No. 23-1633 (3d Cir.

Sept. 20, 2023), ECF No. 84 (“Plaintiffs’ Second

Amendment rights are being violated, so the remainder of the injunction factors follow naturally.”); App.

13a-14a. That Petitioners have now thought better of

their own erroneous arguments is, of course, not a

valid reason to grant review.

II. This Case Is A Poor Vehicle To Address The

Question Presented.

This case is an inappropriate vehicle for addressing the question presented for two reasons. First, the

Third Circuit’s judgment is supported by an unchallenged, independent ground: “[E]ven if the challengers had shown an irreparable injury, the third and

fourth” preliminary injunction factors would still

“weigh against a preliminary injunction.” App. 21a.

Second, Petitioners lack Article III standing, a threshold issue that this Court would have to address before

reaching the merits of their claims.

23

A. Petitioners do not challenge the Third

Circuit’s other bases for affirmance.

As the Third Circuit recognized, the third and

fourth factors of the preliminary injunction inquiry—

balance of the equities and public interest—may serve

as “independent grounds to deny relief.” See App. 15a.

That is a straightforward consequence of this Court’s

decision in Winter, which held that these factors “require[d] denial of the requested injunctive relief,”

“even if plaintiffs ha[d] shown irreparable injury.” 555

U.S. at 23.

Applying Winter’s teaching, the Third Circuit concluded that the “irreparable injury” Delaware would

suffer from enjoining “two democratically enacted

state laws” “support[ed] denying a preliminary injunction,” particularly given Petitioners’ unexcused

“delay” in seeking a redress for the alleged violation.

App. 21a-23a.

Petitioners have not sought review of that holding. Nor have they argued to this Court—as they argued below, App. 13a-14a—that a showing of

likelihood of success automatically tips the third and

fourth factors in favor of a preliminary injunction. On

the contrary, Petitioners now concede that “irreparable injury will justify a preliminary injunction” only

“so long as the other traditional factors are met.”

Pet. 1; accord Pet. 27-28 (acknowledging that “automatic” injunctive relief upon a showing of likelihood

of success on the merits is “inconsistent with the ‘equitable discretion’ historically possessed by the

courts”).

Accordingly,

the

Third

Circuit’s

24

unchallenged holding regarding the third and fourth

factors independently supports the Third Circuit’s

judgment.

This Court “reviews judgments, not statements in

opinions.” California v. Rooney, 483 U.S. 307, 311

(1987) (per curiam). Because this Court’s resolution of

the question presented will not affect the Third Circuit’s judgment, review of that issue “can await a day

when” its resolution would be “meaningful.” The Monrosa v. Carbon Black Exp., Inc., 359 U.S. 180, 184

(1959).

B. Petitioners cannot establish standing.

The Court has an independent duty to assure itself of jurisdiction. Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 95 (1998). At least one petitioner

must have Article III standing to seek this court’s review. Va. House of Delegates v. Bethune-Hill, 587 U.S.

658, 663 (2019). Thus, at least one Petitioner must

show (1) an “injury in fact” that is both “concrete and

particularized” and “actual or imminent”; (2) a

“causal connection between the injury and the … challenged action of the defendant”; and (3) redressability

of the injury by a favorable decision. Lujan v. Defs. of

Wildlife, 504 U.S. 555, 560-61 (1992). In this preliminary injunction posture, Petitioners must be able to

“point to factual evidence” that could make a “‘clear

showing’” that they are “‘likely’” to establish each element of standing. Murthy v. Missouri, 603 U.S. 43, 58

(2024).

Petitioners’ theory of injury is quite narrow: The

individual Petitioners do not assert harm from the

25

restricted weapons being practically unavailable for

purchase—presumably, because they can purchase

guns across the border. Instead, they claim injury because they “wish” to acquire available weapons—and

Petitioner DJJAMS “wish[es]” to sell them—but they

all fear prosecution if they do. App. 20a; C.A.3 App’x

293, 296, 621, 649-51. Thus, in this pre-enforcement

challenge, Petitioners must demonstrate “an injury

that is the result of [each] statute’s … threatened enforcement, whether today or in the future.” California v. Texas, 593 U.S. 659, 670 (2021). With respect to

the “injury in fact” requirement in particular, they

need to show a concrete injury that is “imminent” because the plaintiff demonstrates “‘an intention to engage in a course of conduct arguably affected with a

constitutional interest, but proscribed by a statute,

and there exists a credible threat of prosecution thereunder.’” Susan B. Anthony List v. Driehaus, 573 U.S.

149, 159 (2014).

Neither Petitioners’ declarations nor their complaints’ allegations show standing to challenge either

the assault weapons law or the large-capacity magazine law. Thus, this Court is without jurisdiction to

hear this case.

1. Petitioner DJJAMS does not have standing.

Matthew Jenkins submitted a declaration “solely in

his capacity as principal of DJJAMS.” C.A.3 App’x 292

(all caps omitted). He stated that, “[a]s a consequence

of the Ban, DJJAMS has had to turn away customers

who wished to purchase” firearms from DJJAMS, a

licensed firearms dealer, “resulting in lost business

opportunities.” C.A.3 App’x 293. “But for the Ban and

[Jenkins’] reasonable fear of serious criminal

26

prosecution for a violation of it, [Jenkins] would sell

and assist customers in” acquiring firearms. Id. The

facts alleged in DJJAMS’ complaint are similar. C.A.3

App’x 622-23.

These allegations are insufficient to establish

standing. For starters, DJJAMS attempts to allege injury from only the assault weapons law, not the largecapacity magazine law, so it necessarily cannot challenge denial of a preliminary injunction as to the latter. See Murthy, 603 U.S. at 61. As to the assault

weapons law, neither DJJAMS nor any other plaintiff

has “even allege[d] that Delaware has tried to enforce

the disputed law[] against them” or other types of

facts demonstrating a credible threat of enforcement.

App. 20a. DJJAMS does not allege, for example, that

it sold the restricted weapons prior to the law, that

others have been prosecuted under the law, or that

DJJAMS has been threatened with prosecution. See,

e.g., Susan B. Anthony, 573 U.S. at 159-61. Yet the

law had been in effect for almost six months at the

time of Jenkins’ December 2022 declaration.

More fundamentally, DJJAMS has no standing

because “no court has held ‘that the Second Amendment secures a standalone right to sell guns.’” App.

91a (quoting Drummond, 9 F.4th at 230). “The Supreme Court in Heller was careful … to caution” that

“the right of gun users to acquire firearms legally” for

self-defense “is not coextensive with the right of a particular proprietor to sell them,” stating, “‘[n]othing in

our opinion should be taken to cast doubt on ... laws

imposing conditions and qualifications on the commercial sale of arms.’” Teixeira v. Cnty. of Alameda,

873 F.3d 670, 682 (9th Cir. 2017) (en banc) (quoting

27

District of Columbia v. Heller, 554 U.S. 570, 626-27

(2008)). Whatever “real-world damages (or more accurately, … possibility of real-world damages)” DJJAMS

asserts from “the possibility of facing criminal sanctions,” June Medical Services L.L.C. v. Russo, 591

U.S. 299, 370 (2020) (Thomas, J., dissenting), abrogated on other grounds by Dobbs v. Jackson Women’s

Health Org., 597 U.S. 215 (2022), it has not shown it

intends to “engage in a course of conduct arguably affected with a constitutional interest” that would confer standing here, Susan B. Anthony, 573 U.S. at 15859.

2. The individual Petitioners (Gray, Taylor, Graham, and Stevens) cannot establish standing on this

record. Only one of the three, Taylor, submitted a declaration. Like DJJAMS, Taylor asserted injury from

only the assault weapons law. C.A.3 App’x 296; see

also C.A.3 App’x 622 (complaint). Taylor states he is

“in the process of obtaining [his] concealed carry permit”; that he “do[es] not currently own but desire[s] to

own” restricted assault weapons; and “[b]ut for the

Ban and [his] reasonable fear of serious criminal prosecution for a violation of it, [he] would purchase and

lawfully use such a firearm.” C.A.3 App’x 296.

Like DJJAMS, Taylor fails to show a credible

threat of enforcement. Supra at 26. 3 Taylor has also

3 The other individual Petitioners’ failure to submit evidence is fatal for standing to seek a preliminary injunction. See

Murthy, 603 U.S. at 58. In any event, their complaints are similarly defective. See C.A.3 App’x 621, 649-51. And the Graham

Petitioners’ allegations as to the large-capacity magazine law

could not give them standing to challenge the assault weapons

28

failed to show a concrete, imminent injury traceable

to this theoretical enforcement for two additional reasons. First, “‘some day’ intentions” to own an assault

weapon—“without any description of concrete plans,

or indeed even any specification of when the some day

will be—do not support a finding of the ‘actual or imminent’ injury.” Lujan, 504 U.S. at 564. The indefiniteness of Taylor’s “desire” is underscored by his

waiting almost five months after the law’s approval to

sue and seek injunctive relief.

Second, Taylor does not demonstrate his inability

to own an assault weapon sometime in the future is

traceable to the law and redressable by an injunction,

because Taylor does not assert he would otherwise

meet the eligibility requirements to own a restricted

weapon. His declaration does not establish he is without a felony conviction, can pass a background check,

or meets the age qualifications. C.A.3 App’x 296; see

Del. Code tit. 11, §§ 1448, 1448A. Nor has he established he is not a member of law enforcement, which

means his conduct may not be “proscribed by [the]

statute” at all. Susan B. Anthony, 573 U.S. at 159. The

Court cannot “infer[]” these facts; they “‘must affirmatively appear in the record.’” FW/PBS, Inc. v. City of

Dallas, 493 U.S. 215, 231 (1990). Whether characterized as a traceability, redressability, or injury-in-fact

problem, these omissions further undermine the

Court’s jurisdiction to hear Taylor’s case. Cf. Ne. Fla.

Chapter of Associated Gen. Contractors of Am. v. City

of Jacksonville, 508 U.S. 656, 666 (1993) (concluding

law—the only law they sought to enjoin by joining in the Gray

Petitioners’ motion. Supra at 6.

29

plaintiff must be “able and ready” to engage in the desired activity).

3. For similar reasons, the organizational Petitioners (Firearms Policy Coalition and Second

Amendment Foundation) also cannot establish standing. These Petitioners sued on behalf of their members. C.A.3 App’x 637, 651-53. This type of third-party

associational standing requires each Petitioner to

demonstrate that “‘(a) its members would otherwise

have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor

the relief requested requires the participation of individual members in the lawsuit.’” Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll.,

600 U.S. 181, 199 (2023).

The organizational Petitioners fail to satisfy the

first requirement—they do not “identify members

who have suffered the requisite harm.” Summers v.

Earth Island Inst., 555 U.S. 488, 499 (2009). The only

members identified in this case are other Petitioners,

whose asserted harms have the standing deficiencies

described above. See C.A.3 App’x 293, 296, 650-51; supra at 27-29. For those same reasons, the organizational Petitioners also do not have standing.

III. The Third Circuit’s Decision Is Correct.

The Court should also deny certiorari because the

Third Circuit’s decision was correct. In a thorough

opinion, Judge Bibas rightly rejected Petitioners’

stark position that “the infringement of Second

30

Amendment rights per se constitutes irreparable

harm” justifying preliminary injunctive relief. Pet. 15.

A. “[A] preliminary injunction is an extraordinary

remedy never awarded as of right.” App. 14a (quoting

Winter, 555 U.S. at 24). Its purpose is “merely to preserve the relative positions of the parties until a trial

on the merits can be held.” App. 10a (quoting Starbucks Corp. v. McKinney, 602 U.S. 339, 349 (2024)).

Early American law recognized that courts must use

“extreme caution” and grant this equitable relief “only

in very clear cases.” App. 8a (quoting 2 Joseph Story,

Commentaries on Equity Jurisprudence as Administered in England and America § 959a, at 227 (2d ed.

1839)). Thus, “a plaintiff seeking a preliminary injunction must make a clear showing that ‘he is likely

to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief,

that the balance of equities tips in his favor, and that

an injunction is in the public interest.’” Starbucks,

602 U.S. at 346 (emphases added) (quoting Winter,

555 U.S. at 20); accord App. 13a.

Petitioners are incorrect that they can “sidestep”

the required showing with a rule of per se irreparable

harm whenever a constitutional violation is at play.

App. 13a. Contra Pet. 15-19. A constitutional “violation” is “not necessarily synonymous with the irreparable harm necessary for issuance of a preliminary

injunction.” App. 17a. Petitioners’ per se rule would

violate “longstanding principles of equity,” App. 7a

(quoting Trump v. Hawaii, 585 U.S. 667, 716 (2018)

(Thomas, J., concurring)), by “lift[ing] th[e] burden

from [Petitioners’] shoulders” to prove irreparable

harm, App. 16a.

31

Indeed, this case is a prime example of why a categorical rule for Second Amendment violations would

be unwise and over-inclusive, weighing in favor of injunctive relief even where there is no evidence a plaintiff has suffered any harm. Here, even assuming the

challenged laws violate the Second Amendment, Petitioners and other plaintiffs below failed to prove “they

will more likely than not suffer irreparable injury

while proceedings are pending.” App. 19a.

The declarations here asserted certain plaintiffs

“wish to obtain these firearms and magazines” somewhere at some vague point in the future but fear prosecution if they were found to possess them in

Delaware. App. 20a. However, “[t]hey d[id] not even

allege that Delaware has tried to enforce the disputed

laws against them or to seize the guns or magazines

that they already own. Nor d[id] they allege a timesensitive need for such guns or magazines,” App. 20a,

or attempt to explain why these restrictions “meaningfully diminish[]” Petitioners’ ability to self-defend,

App. 91a; see also App. 4a. 4 Petitioners “offered no details” at all “about how they would be harmed.” App.

4a. The limited record Petitioners supplied did not

“show[] that a preliminary ‘injunction [wa]s required

to preserve the status quo’ while litigation [wa]s pending.” App. 20a.

Moreover, all plaintiffs “delayed seeking a preliminary injunction,” App. 22a, which is “inconsistent

4 As DJJAMS’s “lost business opportunities” do not implicate a Second Amendment right to self-defense in the first place,

C.A.3 App’x 293, it legally cannot prove the type of constitutional

harm underlying Petitioners’ per se rule. Supra at 26-27.

32

with a claim of irreparable injury.” Shaffer v. Globe

Prot., Inc., 721 F.2d 1121, 1123 (7th Cir. 1983); see

C.A.3 App’x 283-84, 595-96, 629 (DSSA and the Gray

Petitioners waited almost five months, and the Graham Petitioners almost nine months). Such significant delays “in seeking enforcement of [the plaintiffs’]

rights … tends to indicate at least a reduced need for

such drastic, speedy action” as a preliminary injunction. App. 23a (quoting Citibank, N.A. v. Citytrust,

756 F.2d 273, 276 (2d Cir. 1985)); see also Citibank,

756 F.2d at 274 (10-week delay); Open Top Sightseeing USA v. Mr. Sightseeing, LLC, 48 F. Supp. 3d 87,

90 (D.D.C. 2014) (36-day delay). And Petitioners’ “continuing delay as [they] choose[] not to hasten to trial

does not help [their] case.” App. 23a.

In other words, given that Petitioners were in no

hurry to seek a preliminary injunction or ultimate

resolution of the merits, and made only “generalized

claim[s] of harm,” App. 20a, they failed to show why

“the District Court w[ould] be unable to decide the

case or give them meaningful relief” without a preliminary injunction, App. 20a; see also Starbucks Corp.,

602 U.S. at 346. Because there are cases (like this one)

where there is no irreparable harm pending a trial,

the Court should not create a per se rule that there

always is.

B. Petitioners offer no persuasive reason to excuse them, and all future plaintiffs asserting Second

Amendment rights, from their burden to show irreparable harm under traditional equity principles.

Petitioners’ main argument is that there is “per

se” irreparable harm before trial simply because

33

“harm that has been suffered” from the violation of a

fundamental constitutional right is “intangible,” so

“money damages” are “wholly inadequate” relief. Pet.

1; see also Pet. 17 (“[t]he universal test” of equity jurisdiction “is the inadequacy of [money] damages”);

Pet. 19 (“legal remedies are inadequate for continuing

wrongs”). But this case demonstrates that the facts of

a particular controversy do not always warrant the

assumption that a party’s particular Second Amendment injury, intangible or not, is irreparable. For example, where a plaintiff moves for a preliminary

injunction against requirements to serialize firearms

assembled from “ghost gun” kits, permitting the

plaintiff to deserialize the firearms post-trial could

provide adequate relief. So too if the alleged Second

Amendment violation arises from private liability insurance requirements; a refund would fully compensate the plaintiff.

Moreover, this Court has “consistently rejected”

similar calls for “categorical[]” rules purportedly justified by the intangible nature of harms like patent

and copyright infringement. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 392-93 (2006); see

Pet. 17 (analogizing to copyright infringement). It has

explained that “the creation of a right is distinct from

the provision of remedies for violations of that right.”

eBay, 547 U.S. at 392. As to the latter, the Court has

insisted district courts adhere to “‘traditional principles of equity’” and resist “such ‘broad classifications.’” App. 17a (quoting eBay, 547 U.S. at 393-94).

Uzuegbunam v. Preczewski, 592 U.S. 279 (2021), cited

at Pet. 19, is not to the contrary. The only issue there

was whether the plaintiff could recover nominal damages alone to redress a past constitutional injury.

34

Uzuegbunam, 592 U.S. at 282-83. Petitioners do not

explain how they are aided by a decision that reaffirmed the “‘well established’” rule “‘that a party

whose rights are invaded can always recover nominal

damages,’” a form of money damages, even for “nonpecuniary rights.” Id. at 289 (emphasis added).

Petitioners also argue that failing to adopt a per

se rule would impermissibly subject the Second

Amendment “to an entirely different body of rules

than the other Bill of Rights guarantees.” Pet. 15-16

(quoting Bruen, 597 U.S. at 70). Their sole basis for

this assertion is that a similar principle was established for one Bill of Rights provision—the First

Amendment—in Elrod v. Burns, 427 U.S. 347 (1976),

where the plurality opinion stated that “[t]he loss of

First Amendment freedoms, for even minimal periods

of time, unquestionably constitutes irreparable injury.” Id. at 373; see Pet. 15-16. The Third Circuit’s

acknowledgement of this longstanding First Amendment principle is not some “attempt to demote the

Second Amendment to second-class status.” Contra

Pet. 16. Instead, it honors this Court’s own recognition of “[u]nique First Amendment” considerations,

including the “time-sensitive” nature of “First

Amendment activity, like weekly worship and political speech.” App. 18a (citing Roman Cath. Diocese of

Brooklyn v. Cuomo, 592 U.S. 14, 19 (2020) (per curiam) and Elrod, 427 U.S. at 374 n.29 (plurality opinion)). However, “[p]resuming irreparable harm is the

exception, not the rule.” App. 16a.

Lastly, Petitioners argue that without a rule of

per se irreparable harm, preliminary injunction hearings about Second Amendment violations will

35

impermissibly become exercises in the “subjective balancing approach” that Bruen rejects. Pet. 22. As an

initial matter, the “interest-balancing” to which Petitioners object relates only to the Third Circuit’s unchallenged balancing of the equities and public

interest and not to the standard for irreparable harm.

As noted above (supra at 23), Petitioners readily concede that courts must still consider “the[se] other traditional factors,” even if irreparable injury is

presumed. Pet. 1-2, 27-28.

In any event, “[t]here is no tension between [a

court’s] consideration of the public interest and

Bruen’s disavowal of means-end scrutiny.” App. 50a

n.105 (Roth, J., concurring). “The former is a threshold inquiry that cabins [courts’] use of preliminary injunctions, while the latter concerns the merits of the

constitutional claim.” Id.; see also eBay, 547 U.S. at

392 (contrasting the “right” with “the provision of

remedies for violations of that right”). Petitioners’

own cases underscore that no matter the nature of the

substantive claim, “[i]n each case, a court must balance the competing claims of injury and must consider the effect on each party of the granting or

withholding of the requested relief.” Amoco Prod.

Co. v. Vill. of Gambell, 480 U.S. 531, 542 (1987); see

Pet. 23 (citing Amoco, 480 U.S. at 546 n.12). As Petitioners “readily admit[ted]” below, their contrary view

would “collapse[] the four [injunction] factors into

one.” App. 14a; see Pet. 27-28.

Petitioners offer the tentative suggestion that

“the panel’s reasoning appears to” permit a similar

“balancing exercise” for a permanent injunction as

well. Pet. 22 (citing App. 21a). But the Third Circuit’s

36

decision focused on the proper role of a preliminary

injunction; speculation about collateral effects on a

permanent injunction is no basis on which to grant

review.

It is Petitioners’ rule that will cause mischief—

and across all constitutional litigation. If every constitutional violation creates per se irreparable harm,

this factor would always rise or fall with the likelihood of success on the merits. See Pet. 1-2. That would

mean that in evaluating irreparable harm, district

“courts would always have to prejudge the merits,”

App. 15a, “hurriedly and on the basis of very limited

evidence,” App. 8a (quoting O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 389 F.3d 973,

1015 (10th Cir. 2004) (en banc) (McConnell, J., concurring)), even though “[a]ffidavits drafted by lawyers

are poor substitutes for discovery, live testimony, and

cross-examination,” App. 9a. Appellate courts, too,

would be required to resolve the merits in any constitutional appeal, on the same limited record, regardless of plaintiffs’ actual need for a quick resolution,

and contrary to the typical discretion to resolve preliminary injunctions on other grounds. See Winter,

555 U.S. at 31 (resolving preliminary injunction based

on other factors without reaching merits).

This, in turn, will lead plaintiffs to do exactly

what Petitioners did here: strategically bypass “the

clarity of a full trial on the merits” in the interest of

securing what is sure to be treated as the definitive

resolution of the law on appeal. App. 22a-24a. While

there may be times when it is necessary for courts to

make these sorts of “snap judgments in the abstract,”

App. 24a, that should not be the norm for

37

constitutional law. And it is most certainly not what

a preliminary injunction is for.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

Kathleen M. Jennings

Zachary Stirparo

DELAWARE DEPARTMENT OF JUSTICE

Carvel State Office

Building

820 N. French Street

6th Floor

Wilmington, DE 19801

(302) 577-8400

December 12, 2024

David E. Ross

Counsel of Record

Garrett B. Moritz

ROSS ARONSTAM &

MORITZ LLP

1313 North Market

Street

Suite 1001

Wilmington, DE 19801

(302) 576-1602

dross@ramllp.com