The NRA-ILA’s Joe Greenlee on the Current State of the Gun Rights Legal Landscape

Joe Greenlee is the litigation director of the National Rifle Association Institute for Legislative Action. Greenlee has been with the Institute for a little over a year and a half. Prior to joining NRA-ILA, Greenlee was with the Firearms Policy Coalition.

Greenlee and I chatted about some of the things that NRA-ILA has had cooking and did a little speculation on what we could expect in the future. 

Portions of this interview have been edited for clarity and readability.

Petrolino: Today I’m talking with Joe Greenlee. He’s the litigation director at the NRA and we’re going to talk about a couple of things that are going on with the NRA and some litigation and different moves and things that are happening. Joe, how are you today?

Greenlee: I’m doing well. Thank you very much for having me. 

Petrolino: Yeah, it’s a pleasure to finally get you on the line and have a chat with you about all the things that are going on. Maybe just get my readers and my viewers and listeners a little up to speed. Who’s Joe Greenlee, what you’re all about, what you’re doing, because I know you wear a lot of hats and you do a lot of things.

Greenlee: Sure, so I’m the litigation director at the National Rifle Association Institute for Legislative Action, focused largely on litigation, directing all the cases that we have and then I write a lot of legal scholarship. I think I published recently my 18th scholarly article that which usually focus on the history of the right to keep and bear arms. And previously, I’ve been here about 14 months, the five years before that, I spent at the Firearms Policy Coalition as the senior attorney and director of Constitutional Studies. And then the five years before that, I was in general practice, taking as much Second Amendment work as I could, which typically came from Second Amendment Foundation, and then working alongside Dave Kopel various briefs and overview articles.

Petrolino: You’ve got quite a pile of work that’s been getting done too, from what I understand. And we’ll get to some of those briefs and the things that you’ve been up to. My first question, what do you love about doing Second Amendment related law? Like, what do you love about this?

Greenlee: I always have loved and cherished the right to keep and bear arms. And it so happens that right now, I was really born at the perfect time in American history to do Second Amendment law and defend — kind of permanently define the Second Amendment through the courts, because through the first 200 roughly and 25 years, the courts largely ignored the Second Amendment. Then came along Heller in 2008. Then we got a bunch of bad case law after that, up until 2022 and New York State Rifle Pistol Association v. Bruen was decided. The Supreme Court kind of reset Second Amendment litigation. From 2022 until really 2040 maybe 2050, will be the time. I think in hundreds of years when they look back at when the scope of the Second Amendment was defined, they will be looking back to this period, which just so happens to be when I’m alive and hopefully still working in this field throughout that time. But so just very fortunate and very neat to be able to be a part of that kind of permanently defining the scope of the right.

Petrolino: Now you’re with the NRA and you just said, you’ve basically just celebrated about your one year anniversary a little bit over that, right? You’ve been with the Association for a bit now. What has that experience been like for you? How’s, how’s NRA-ILA treating you?

Greenlee: Yeah, it’s excellent. I couldn’t be happier. Could not be happier here, it’s really exceeded my expectations.

We’ve been focusing on just becoming as active as possible. NRA has always been very active in litigation. They got kind of a reputation for not being active, I think because they weren’t putting their names on cases. People look at the caption.

For example, New York State Rifle and Pistol Association v. Bruen was an NRA case. NRA organized and funded and litigated all the way through, but it doesn’t have NRA on the case. So a lot of people, even people who follow Second Amendment litigation and Second Amendment news, don’t realize that was an NRA case. So they’ve always been active. But nevertheless, we are trying to maximize our activity and file a lot of cases wherever we can. And then be especially active filing amicus briefs supporting other group’s cases. So that’s been the focus here.

Petrolino: I’ve noticed this because I get all of the releases for the briefs that are coming out from all of the different organizations. And something that I started to notice probably mid-last year is we got NRA is co-plaintiffing with this group, and NRA is co-plaintiffing with that group. And it’s nice to see that the name is going on the briefs. Most recently, would have been over the last couple months, meaning the Colorado case, right? So you guys were the leader of the Colorado case. You want to talk a little bit about what was going on there with the excise tax and everything.

Greenlee: Although I’ll quickly note for our co-plaintiffs that we’re all bringing it together. We filed that one along with the other groups.

First of all, Colorado has a recently enacted 6.5% excise tax on all firearm and ammunition sales, much like California. Colorado tends to follow California these days, unfortunately in a lot of areas, and California had enacted an 11% excise tax on firearm and ammunition sales. Largely, the same group of us filed the challenge of California’s — maybe last October. October 2024 — and this time filing are: Firearms Policy Coalition, Second Amendment Foundation, National Rifle Association, and Colorado Shooting Sports Association. We all got together to challenge this law.

Petrolino: And I misspoke in saying the lead. You know what, the NRA’s press release was the first one that I got. So that’s just me miss speaking there. 

Now you’re talking about briefs. How many briefs have you written since you’ve been with the NRA-ILA? I think that you’re like a machine. Do you sleep? Are you a vampire?

Greenlee: I do have a bad case of insomnia, which does seem to benefit my work, until I pay dearly for it. 

I appreciate you noticing. We filed last year, I think we have 15 amicus briefs, which was the most of any pro-gun organization. In comparison, I think it’s Giffords who gets a lot of pro bono work from like 29 different major law firms. They’re hard to compete with. We haven’t been able to pass them yet. But we filed the most briefs last year, amicus briefs.

This year, we’re on pace to far exceed what we filed last year. Then additionally, we’re taking more cases in house to increase how much work we’re doing, how many cases we’re handling. We’re bringing a lot more work in house. So in addition to the amicus briefs, we’re taking a lot of cases where we’re counsel on the case and litigating it ourselves.

Petrolino: So speaking of cases and being a co-plaintiff and being involved, there’s a really, really exciting case out of New Jersey that you absolutely have to tell me all about. The suppressor case. What is going on with this?

Greenlee: Yes. So yeah, we’re, I’m very excited about this one. We just filed — we being the NRA, along with, the American Suppressor Association, the Second Amendment Foundation, Safari Club International, Association of New Jersey Rifle and Pistol Clubs, and New Jersey Firearm Owner Syndicate — all together are have filed this case challenging New Jersey’s prohibition on suppressors.

This was filed in the New Jersey District Court, and I expect will eventually make its way up to the Third Circuit Court of Appeals. And I’m really excited about this one for two reasons.

First, these groups have been wonderful to work with. All those groups I just mentioned. When you file a case like this, it’s really like entering into some kind of a long term relationship, because these cases can take many years to litigate. You want to make sure that you file with groups that you really enjoy working with and honestly, I think this is the most fun I’ve had helping to put a case together, because all these groups have just been wonderful. There’s been no hiccups or anything along the way. They’ve been great. And so that’s fun. 

And then secondly, I’m excited about it, because I think we have a really strong case. There’s just nothing close to a historical tradition of regulation that justifies prohibiting suppressors. And that’s what the Bruen case I mentioned, the Supreme Court said, that’s what’s required for a Second Amendment regulation to be upheld. I think it’s a case we should win. And yeah, really, really excited to get that one filed.

Petrolino: The thing that I keep repeating about the suppressors in general is they’re not dangerous, they’re not unusual, and guess what? They’re now in common use. So once you get past all of the minutia of everything else, there’s nothing to really lean on to keep these prohibited. And obviously that goes extended to how they’re handled federally in the future. That’s going to be interesting.

You mentioned the Third Circuit Court of Appeals. I’m going to talk about a case that’s not an NRA case, but maybe you can, you know, Bellwether a little bit on it. It’s a New Jersey affiliate case. ANJRPC. We have the Siegel case, which was combined with Koons. So we’ve been sitting on this — was at the Third Circuit Court of Appeals over, we’re looking at a year and a half now. I know this isn’t your case, but I want to talk to you a little bit about the Third Circuit Court of Appeals. What do you think might be going on there with those two cases in particular? And then I’ll broaden the question out further more about the Third Circuit.

Greenlee: First of all, that actually is, there’s two consolidated cases there, and one of them is NRA-backed… 

Petrolino: Okay.

Greenlee: That’s kind of what I’m saying, where you don’t have any way of really knowing whose on a case if they’re not in the caption. So that’s a good example of what we are…

Petrolino: Are you on Siegel? 

Greenlee: Yes. 

Petrolino: News to me. And I’ve been following this stuff wicked closely, and I didn’t know that that was partially NRA-backed. So everyone that’s listening, so that’s another NRA case.

Greenlee: I don’t know what could be going on. We did just pass a year and a half mark from oral arguments. That’s not unheard of. There’s a case in the Second Circuit, Zherka, a prohibited persons case that I think was, I think it was argued like several years ago now at this point. It’s not unheard of, and it is a very complicated case. It’s one of these Bruen-response laws.

The Supreme Court in Bruen said everyone has a right to publicly carry firearms, and a lot of these states, especially the ones that had “may-issue” licensing laws were struck down in Bruen, responded by enacting these laws that just make 20 categories of places throughout the state “sensitive.” So-called “sensitive places,” where carry can be prohibited.

They’re very complicated cases, because maybe schools are in there. That might be a different analysis than some of these laws that have beaches and parks. Some of these courts struggle to come up with a rule where that just applies to each one and they analyze each category separately. It might just be that the court’s giving it a lot of attention, but I’m not really sure.

Petrolino: The Third Circuit Court of Appeals is kind of an interesting circuit, and traditionally, I think we could say that it’s heavily covered business law, because of states like Delaware. Because of their incorporation laws make it a good place for business to be registered.

The Third Circuit Court of Appeals may actually be an up and coming circuit to put out all of these Second Amendment cases. What’s your view on that?

Greenlee: I agree. I think it could be an ideal situation there, in the sense that a lot of these states that are not great for gun rights, let’s say bad for gun rights. New York or California, for example, happen to be in jurisdictions that are not great for Second Amendment litigation.

California is in the Ninth Circuit, and just before Bruen, Judge VanDyke of the Ninth Circuit wrote this dissent, explaining that that court had heard since Heller over 50 Second Amendment challenges, and the court upholds the gun control regulation in every single one of those cases. It just so happens to be that a lot of times these kinds of anti-rights states are in jurisdictions where they’re very hard to challenge the laws. 

New Jersey will be an exception to that, because it’s going to be a not great state for gun rights in a relatively favorable court. The Third Circuit has 14 active judges, and right now there’s two vacancies [at the time of publication, there are no longer any vacancies].

As it sits right now, there’s 12 judges, because two just entered retirement or senior status. It’s evenly divided right now, three Obama and three Biden appointees. What President appoints a judge doesn’t always indicate how they’re going to rule on gun rights, but it’s turned out to be a pretty good indicator, and Trump judges are generally speaking the most favorable to the Second Amendment. Right now it’s six, six Republican and Democrat appointees, and four Trump appointees. One of the non-Trump Republican appointees is Judge Hardiman, who’s outstanding on Second Amendment cases.

With those two vacancies, it’ll be President Trump who can fill those so it should be an eight – six divide there. With eight generally favorable judges and even the Democrat appointees, we saw many of them in the Range case join with the majority, agreeing that Mister Range should get a challenge to the federal felon ban. Mister Range wasn’t actually a felon. He was convicted of a misdemeanor punishable by more than two years in prison, but it falls within the federal felon ban, and he was forever prohibited from possessing arms. As I recall, that there’s a few decisions in that case, including a few en banc decisions. I think in the most recent one, only two judges voted to maintain that permanent firearms ban for Mister Range, and judge I think it’s Freeman joined with the majority allowing Mister Range to get his rights back the first time. Then you have judge Krause, who’s I think very intelligent — well obviously very intelligent, but really tries to get cases right. She’s not like automatically going to uphold any gun control law. I think she takes a close look and tries to get it right. Overall, compared to other circuits, it’s a favorable court. New Jersey might be the ideal place to bring some litigation,

[Note, the two vacancies have been filled by President Trump appointees. Further, Judge Krause just delivered a blisteringly anti-Second Amendment onion in the Koons and Siegel cases.]

Petrolino: I think Judge Krause is on the three-judge panel for the Koons and Siegel case as well. 

Greenlee: That’s right.

Petrolino: We’ll see what happens. 

There’s a lot of frustrations. You hear all the murmurs from people in Massachusetts and New Jersey, and a lot of these states where it is very difficult — Massachusetts in particular, because it’s a bad gun state and a bad circuit right? At least New Jersey, the circuit has slowly changed to where it’s a little bit more favorable.

Is it safe to say that the NRA is coming for New Jersey? Is that a message that we can put out there?

Greenlee: We certainly intend to be very active in New Jersey. I think it’s going to be a very good place to bring cases. I anticipate bringing a lot of litigation there over the next few years. And I should mention we also have another case that has been consolidated with an NRA-backed case along with a an FPC case. A challenge in the Third Circuit to New Jersey’s magazine ban and assault firearm ban. It has been briefed at the Third Circuit and oral arguments should be very soon, I think within the next few weeks, or certainly months here, and that one we could get a very good decision on.

[The consolidated Cheeseman and ANJRPC cases have been litigated and the Third Circuit requested an en banc on its own. Arguments are scheduled with the the en banc panel later this month.]

Petrolino: That’s also an NRA case? Another news flash to me. We probably should just talk about this offline and give me a list, because this is crazy.

I’m going to say that maybe it’s not a full on declaration of war against the Garden State, but you definitely are giving people something to bang their shields over, right?

Greenlee: Absolutely. I invite anyone to reach out and let me know about laws that they think are infringements, because I think it’s really the ideal state for litigation going forward. With hostile, very anti-rights states as far as the Second Amendment goes, and a fair court that you can get a fair hearing before.

Petrolino: A couple other things here before we wrap up. We were talking about some of those briefs that you did, and we also talked about sensitive locations. That was also a recent brief that you guys filed was in Hawaii, right?

Greenlee: Yes. Hawaii has one of these Bruen-response laws where the goal is to just make carry as impractical as possible so people don’t bother. Then if they can’t carry anywhere, maybe they don’t even get a firearm in the first place. They also have a provision that a few of these states have, which is the private property default rule. I think Rob Romano, very cleverly coined it the “vampire rule” because in old literature, vampires couldn’t enter unless they were invited in somewhere, and that’s how these laws treat concealed carry permit holders.

If, under these laws, if there’s publicly accessible private property — think like a gas station or a grocery store, fast food restaurant, you can’t enter as a carry permit holder with your firearm unless they have a sign or, somehow expressly provide consent that you’re allowed to carry a gun on the property. They need to put up a “we allow carry here” sign which, of course, the purpose of that is to make carry not even worth going forward with, if you can’t actually enter any places with your firearm.

That part, the plaintiffs in this case challenged that law, the Hawaii law, and the Ninth Circuit upheld that private property default rule. Even the Second Circuit said that’s likely unconstitutional. But the Ninth Circuit said, “No, it’s probably okay.” The plaintiffs petitioned the Supreme Court to hear the case on that issue, and then also on whether 1791 or 1868 is the relevant time period for analogues.

Petrolino: The Supreme Court twice acknowledged that…

Greenlee: There’s some debate over whether when we look to historical tradition, should we focus on the public understanding of the Second Amendment in 1791 when the Second Amendment was ratified, or 1868 when the 14th Amendment was ratified, which then made the Second Amendment applicable ultimately to the states. The petitioners asked the Supreme Court to address those two issues, and then we filed an amicus brief along with 10 total groups on the case.  

I need to give Kostas Moros special recognition for his incredible work on that brief. We filed that making the point that this really is designed to prevent people from carrying in the first place, and also there’s no historical justification for it. 

Then the U.S. Department of Justice filed an amicus brief also supporting the cert petition, which is outstanding. We have not seen much of that in any of that in Second Amendment litigation that I can think of. 

As good as our brief was, and proud as we are to be a part of it, I don’t think any brief can have more of an impact than — especially at the petition stage — than a brief from the United States. That was really exciting to see, and hopefully helps to convince the court to take the case.

[The U.S. Supreme Court agreed to hear Wolford v. Lopez on an interlocutory basis on the so-called “vampire rule.”]

Petrolino:  I think that’s great. All of the reform and things that the Trump Administration says they’re interested in participating in — they are participating. It’s just only been a little over 100 days. So it’s not like walking on water happens overnight. 

I think it’s important to note that the Third Circuit Court of Appeals, I believe, TWICE — TWICE, affirmed that 1791 is the applicable time frame. So for all those cases that are going on in the Third Circuit they are looking at 1791 that’s correct, right?

Greenlee: Yes, although it was kind of the same case. That was the Lara case I believe you’re referring to where they said 1791. That case got up to the Supreme Court, sent back to the Third Circuit, and they said 1791 again. So yeah, 1791 in the Third Circuit and and most federal circuit courts are coalescing around 1791, the majority of them at this point. 

Still you have courts, like the Second Circuit seems to favor 1868, at least when it wants to, and the Ninth Circuit favors it at least when it wants to. It would be really helpful to get a get a decision and in the meantime if the Supreme Court doesn’t weigh in, you really get two different understandings. More restrictions were tolerated certainly in 1868 than 1791. You end up with 1791 reflecting a greater, more robust appreciation for the right. You get two different Second Amendments in different parts of the country. And I don’t think the court can tolerate that forever.

Petrolino: No, not at all, Joe, I definitely appreciate your time. Is there anything that I’ve left on the table that we need to get out there to discuss? Is there anything on your mind that you want to tell everyone that’s listening in about the work that you’re doing, about the NRA? To point out anything at all. What is your message?

Greenlee: I guess my message would just be that we’re being as active as possible, trying to do as much work as we possibly can on behalf of our members and Second Amendment supporters. We’re happily and eagerly working with other groups as much as we can. I think on nine of our last 10 cases we filed, we’re working with other groups, including on the one we mentioned earlier. We’re trying to do everything we can to bring everyone together, and pull in the same direction here. It’s been going well. And I hope people are noticing.

Petrolino: Joe, I thank you so much. And what is the best way for people to follow you or stay abreast of what’s going on? Are there some socials that you do? Do you have spicy, spicy tweets like Kostas, or not really, or?

Greenlee: No, I’m only on LinkedIn. That’s my only social media. I don’t think I’ve ever posted on there, so I’m not very exciting online.

But if you follow NRA-ILA’s  legal alerts, then you should be hearing from us every other week, at least with some kind of update on briefs and cases. So I encourage everyone to do that.