POST-HELLER LITIGATION SUMMARY Updated February 15, 2013 I.
Introduction and Overview
The Law Center to Prevent Gun Violence is tracking litigation involving Second Amendment challenges to federal, state and local gun laws asserted in the aftermath of the United States Supreme Court’s landmark decision in District of Columbia v. Heller, 554 U.S. 570 (2008). The Law Center has examined over 600 federal and state post-Heller decisions discussing the Second Amendment in the preparation of this analysis and has a wide variety of Second Amendment resources available on our web site. A.
Heller and McDonald
In District of Columbia v. Heller, the Supreme Court held for the first time that the Second Amendment protects a responsible, law-abiding citizen’s right to possess an operable handgun in the home for self-defense. In a 5-4 ruling, the Court struck down Washington, D.C. laws prohibiting handgun possession and requiring that firearms in the home be stored unloaded and disassembled or locked. In Heller, the Supreme Court cautioned that the Second Amendment should not be understood as conferring a “right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose,” and identified a non-exhaustive list of “presumptively lawful regulatory measures,” including “longstanding prohibitions” on firearm possession by felons and the mentally ill, as well as laws forbidding firearm possession in sensitive places such as schools and government buildings, and imposing conditions on the commercial sale of firearms. The Court also noted that the Second Amendment is also consistent with laws banning “dangerous and unusual weapons” not in common use at the time, such as M-16 rifles and other firearms that are most useful in military service. In addition, the Court declared that its analysis should not be read to suggest “the invalidity of laws regulating the storage of firearms to prevent accidents.” In 2010, the United States Supreme Court held in a 5-4 ruling that the Second Amendment applies to state and local governments in addition to the federal government in McDonald v. City of Chicago. As it had remarked in Heller, the Court reiterated in McDonald that the Second Amendment only protects a right to possess a firearm in the home for self-defense, and that a broad spectrum of gun laws remains constitutionally permissible. B.
Lawsuits After Heller and McDonald
Since Heller, federal and state courts have rejected Second Amendment challenges to a wide variety of firearms laws nationwide. As discussed in Section IV below, the majority of Second Amendment challenges have been raised in criminal cases. These challenges have been largely
unsuccessful, as courts have found that the Second Amendment is consistent with numerous federal and state criminal laws. Additionally, plaintiffs have initiated a flood of civil lawsuits since Heller, including fifty significant ongoing suits against state and local governments and the District of Columbia, and nine significant ongoing suits against the federal government. As discussed in Section III, while most civil plaintiffs’ Second Amendment claims have been as unsuccessful as those raised by criminal defendants, many of these ongoing suits seek to broadly expand the Amendment beyond the right articulated in Heller and McDonald. Significant questions about the scope and application of the Second Amendment remain unresolved following Heller and McDonald, questions which post-Heller courts continue to confront. For more on these issues, see Section V below. II.
Recent Developments in Second Amendment Litigation
The following significant developments have occurred in Second Amendment litigation since November 27, 2012. A.
United States v. Carter (S.D. W. Va.): Law prohibiting firearm possession by unlawful drug users survives intermediate scrutiny
On November 27, the U.S. District Court for the Southern District of West Virginia determined that the defendant's conviction for possessing a firearm while being an unlawful user of marijuana in violation of federal law did not violate the Second Amendment.i Applying a twoprong test for Second Amendment challenges, the court explained that based on prior Fourth Circuit case law, the law implicates conduct protected by the Second Amendment, intermediate scrutiny is the applicable standard of review, and the law serves an “undeniably important interest in protecting the community from crime by keeping guns out of the hands of dangerous persons.” (internal citation omitted). Moreover, the court determined that the law is properly tailored to that interest since, instead of permanently disarming drug users, the law only prohibits firearm possession by individuals during the period that they are abusing drugs. Finally, the court cited numerous studies and reports showing a strong correlation between drug use and crime, and it noted that no federal appellate court has struck down the law. B.
United States v. Davis (S.D. W. Va.): Court says body armor is not protected by the Second Amendment
On November 29, the U.S. District Court for the Southern District of West Virginia rejected the defendant’s argument that body armor is among the type of "arms" that the Second Amendment protects and upheld the federal law prohibiting violent felons from possessing body armor.ii Notably, although the court quoted language from Heller explaining that "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” it nonetheless determined 2
that body armor would not constitute “arms” under that decision. The court reasoned that, since Heller often used the word “weapon” in place of “arms,” the U.S. Supreme Court had interpreted the Second Amendment as protecting "instruments used forcibly or affirmatively during a confrontation— and not...those things that are merely ‘a passive means of self defense.’” (internal citation omitted). C.
United States v. Stegmeier (8th Cir.): Eighth Circuit rejects Second Amendment challenge based on defendant’s claim that federal law creates “host liability”
On December 2, the U.S. Court of Appeals for the Eighth Circuit held that the defendant's conviction for providing a firearm to a prohibited person (a fugitive felon), in violation of federal law, did not violate the Second Amendment.iii The court rejected the defendant's argument that the law violated the Second Amendment in this case by imposing "host liability" on the defendant, such that the defendant was guilty merely by inviting a prohibited person into his home where he kept a firearm. The court explained that host liability was not implicated in this case since the defendant allowed the prohibited person to live in a recreational vehicle that the defendant owned and told the prohibited person that a firearm was located in the vehicle. Because the case did not raise the issue of host liability, the court said that it did not need to address the merits of the Second Amendment challenge, finding only that the conviction did not violate the Second Amendment. D.
United States v. Khatib (E.D. Wis.): Law prohibiting the receipt of firearms by individuals who are under felony indictment survives intermediate scrutiny as applied to the defendant
On December 6, the U.S. District Court for the Eastern District of Wisconsin rejected the defendant's as-applied Second Amendment challenge to the federal law that prohibits individuals who are under felony indictment from receiving firearms, finding that the as-applied challenge withstood intermediate scrutiny.iv The court explained that the defendant appears to have acquired firearms while under indictment for the purpose of murdering witnesses against him, which the court said is exactly the type of activity the statute seeks to prevent. Moreover, the court found the statute survived intermediate scrutiny as applied to the defendant because it imposes only a temporary restriction on indicted individuals, and instead of entirely prohibiting firearm possession by those individuals, it only restricts their ability to receive new firearms. E.
United States v. Carpio-Leon (4th Cir.): Fourth Circuit says illegal aliens are not protected by the Second Amendment
On December 14, in its first decision addressing a Second Amendment challenge to the federal law that prohibits illegal aliens from possessing firearms, the U.S. Court of Appeals for the Fourth Circuit concluded that the law is constitutional.v The court evaluated the challenge under a two-prong test that is often applied to Second Amendment challenges and determined that illegal aliens are not protected by the Second Amendment since the historical record 3
reveals that they are not law-abiding members of the political community. Thus, the court did not need to review the challenge under any level of constitutional scrutiny under the test’s second prong. Additionally, the court rejected the defendant's argument that the law violates his right to equal protection under the due process clause of the Fifth Amendment. The court explained that, since the right to bear arms is not a fundamental right, only rational basis review is applicable. The court found that the law survives rational basis review since "courts have identified numerous legitimate reasons why it would be dangerous to permit illegal aliens to arm themselves." F.
State v. Rush (Ohio Ct. App.): Ohio appellate court upholds state prohibition on carrying loaded, accessible firearms in motor vehicles
On December 14, the Court of Appeals of Ohio upheld the state’s law prohibiting the carrying of a loaded and accessible firearm in a motor vehicle, rejecting the defendant’s as applied Second Amendment challenge.vi The court relied on a prior decision in which it found that the law survives rational basis review since it does not prohibit the transportation of all firearms in motor vehicles and only limits the manner in which loaded firearms may be transported. G.
Johnston v. North Carolina (N.C. Ct. App.): State appellate court reverses in part and remands in part trial court ruling that state felon-in-possession law is unconstitutional
On December 18, the Court of Appeals of North Carolina reversed a trial court decision finding that a North Carolina law prohibiting felons from possessing firearms violated the plaintiff’s procedural due process rights under the U.S. Constitution, but it remanded the plaintiff’s substantive due process claim, explaining that additional evidence is needed to determine whether the law violates the Second Amendment or survives intermediate scrutiny.vii The court conducted a two-prong test to determine whether the plaintiff’s Second Amendment rights had been violated. Because it was unable to determine whether the defendant’s conduct fell within the scope of the Second Amendment, since the historical evidence before the court was inconclusive, and since courts disagree as to whether felons are protected by the Second Amendment, the court assumed without deciding that felons are within the scope of the Second Amendment. The court then determined that intermediate scrutiny was the applicable standard of review since the plaintiff, as a convicted criminal, was not within the protections of the core Second Amendment right. Although the court determined that the purpose of the law, to protect the public and keep handguns out of the hands of violent felons, is important, it was unable to conclude whether the law is appropriately tailored to that purpose so as to satisfy intermediate scrutiny. Thus, the court remanded the matter to the trial court where additional evidence can be gathered.
Williams v. Puerto Rico (D. P.R.): Court rejects Second Amendment challenge to Commonwealth’s concealed carry licensing requirements
On December 21, the U.S. District Court for the District of Puerto Rico dismissed the plaintiffs’ claims that Puerto Rico law governing the licensing of concealed carry violates the Second Amendment on its face.viii The plaintiffs had been denied permits to carry concealed weapons because they failed to provide certain paperwork required by the law, including a sworn statement attesting to compliance with fiscal laws, three sworn statements from reputation witnesses, a sworn statement that they had paid their Commonwealth taxes, and a certificate proving that they were not in arrears on child support payments. The plaintiffs challenged the provisions of law requiring submission of that paperwork, among other requirements of the licensing statute, and also argued that the mere licensing of concealed carry was unconstitutional. Dismissing the latter argument, the court explained, “in light of the previously mentioned Supreme Court and First Circuit Court of Appeals case law declaring regulations on the carrying of weapons outside the home presumptively lawful, plaintiffs’ contention that the mere licensing of weapons in Puerto Rico is unconstitutional fails.” The court determined that the plaintiffs’ facial Second Amendment challenge to the licensing requirements failed because the plaintiffs had not shown that the requirements would be invalid under all circumstances. Nonetheless, “in an abundance of caution,” the court also found that the requirements would survive intermediate scrutiny, which it said was the appropriate standard of review since the requirements do not impose a severe burden on the Second Amendment and only regulate the manner in which a person may exercise the right. The court found that the purpose of the requirements, to protect public safety, “is important or even compelling,” and that the requirements are properly tailored to that purpose since the legislative history of Puerto Rico’s concealed carry scheme reveals a strong connection between guns and crime. The court noted that Puerto Rico has regulated the carrying of concealed carry for over one hundred years. Moreover, the court explained, “Based on decades of review, the Puerto Rico legislature made the reasonable inference that given the dangerous nature of firearms, requiring a petitioner to submit payment and documentation revealing background, health, and character – like third party affidavits as to the good reputation and non-violent character of the petitioner, confirmation of petitioner’s physical and mental abilities, confirmation of successful gun club course completion, and verification of state tax and child support payments – serves the Commonwealth’s interest in public safety.” I.
Lane v. Holder (4th Cir.): Fourth Circuit says laws making it slightly more difficult for plaintiffs to obtain handguns do not unconstitutionally burden their Second Amendment rights
On December 31, the U.S. Court of Appeals for the Fourth Circuit affirmed the district court’s judgment that the plaintiffs lacked standing to raise a Second Amendment challenge to a federal law that prohibits the transfer or receipt of handguns acquired outside of one’s state of residence unless the transaction is processed through a federally licensed dealer (“FFL”) located in the purchaser’s home state and to a Virginia law that prohibits Virginia firearms dealers from 5
selling handguns to non-residents of the state unless the transaction is processed through a FFL located in the buyer’s home state.ix The court explained, “These minor inconveniences are distinct from an absolute deprivation. To obtain a handgun from another state, the plaintiffs must pay a transfer fee and visit multiple FFLs, but the laws do not prevent them from exercising their Second Amendment right to bear arms. This case thus differs from those in which courts have found standing for plaintiffs prevented outright from obtaining or possessing firearms.” (citing Ezell v. City of Chicago and Dearth v. Holder). J.
United States v. Pruess (4th Cir.): Fourth Circuit says most nonviolent felons can be prohibited from possessing firearms
On December 31, the U.S Court of Appeals for the Fourth Circuit rejected the defendant's argument that the federal felon-in-possession prohibition was unconstitutional as applied to him as a "nonviolent" felon who had only been convicted of selling illegal weapons.x Although the court addressed the specific as-applied challenge, as discussed below, it more significantly held, “We now join our sister circuits in holding that application of the felon-in-possession prohibition to allegedly non-violent felons like Pruess does not violate the Second Amendment.” While the court explained that a presumptively lawful regulatory measure, like the one at issue here, can be unconstitutional if, as applied, it impinges the “core” Second Amendment right, the court concluded that the statute was not unconstitutional as applied to the defendant since he was neither not law-abiding nor responsible. Moreover, the court found that possession of ammunition by an individual who had been convicted of selling stolen firearms, machine guns, and grenades is outside the scope of the Second Amendment. It explained, "The Government offers substantial evidence that the Founders severely limited the right to bear arms, excluding from its protection a broad range of often non-violent individuals and groups deemed ‘dangerous.’” Furthermore, the court stated, notably, "The nature of Pruess’ weapons collection also counsels against finding Pruess’ conduct to be within the scope of the Second Amendment based on the statement in Heller that ‘the sorts of weapons’ the Amendment protects are ‘those in common use at the time’ of ratification – not dangerous and unusual weapons,’ which there is a historical tradition of prohibiting.” K.
Schrader v. Holder (D.C.): Appellate court finds that certain state law misdemeanants can be prohibited from possessing firearms
On January 11, the U.S. Court of Appeals for the D.C. Circuit rejected the plaintiffs’ argument that the federal felon-in-possession prohibition violates the Second Amendment to the extent that it prevents firearm possession by individuals who have been convicted of state common law misdemeanor offenses that have no statutory limit on jail time.xi Analyzing the challenge under a two-prong test for reviewing Second Amendment challenges, the court declined to determine whether individuals who have been convicted of state common law misdemeanors that have no statutory limit on jail time fall within the scope of the Second Amendment. Instead, the court moved to the second prong of the test and determined that the law 6
withstands intermediate scrutiny as applied to the group discussed. The court explained that intermediate scrutiny was the proper standard of review “[b]ecause common-law misdemeanants as a class cannot be considered law-abiding and responsible…,” and because other courts of appeal have applied intermediate scrutiny to Second Amendment challenges. In concluding that the statute meets intermediate scrutiny, the court explained “plaintiffs have offered no evidence that individuals convicted of such offenses pose an insignificant risk of future armed violence. To be sure, some common-law misdemeanants, perhaps even Schrader, may well present no such risk, but Congress is not limited to case-by-case exclusions of persons who have been shown to be untrustworthy with weapons, nor need these limits be established by evidence presented in court.” (internal citation and quotation marks omitted). Notably, the court explained that had the plaintiffs made an as-applied challenge specific to Schrader, “Heller might well dictate a different outcome.” Schrader had been convicted of misdemeanor assault and battery for engaging in a fist fight over 40 years prior, received no jail time, and has been a law-abiding citizen since that time. Nonetheless, the court concluded, “we believe the wisest course of action is to leave the resolution of these difficult constitutional questions to a case where the issues are properly raised and fully briefed.” L.
United States v. Armstrong (1st Cir.): First Circuit rejects as-applied Second Amendment challenge to federal domestic violence misdemeanor prohibition
On January 18, the U.S. Court of Appeals for the First Circuit upheld the federal law that prohibits the possession of firearms by individuals who have been convicted of perpetrating misdemeanor domestic violence, rejecting the defendant’s as-applied Second Amendment challenge to the law.xii The court disagreed with the defendant's argument that offensive physical contact – such as the offensive touching that the defendant was convicted of perpetrating against his wife (in hitting her hard), in violation of Maine law – does not fall within the definition of a crime of "physical force" that triggers the federal firearm prohibition for domestic violence misdemeanants. Additionally, although the court explained that it had not adopted a standard of scrutiny for reviewing Second Amendment challenges such as the defendant’s, it determined that, “under any standard, Armstrong's claim fails." (internal citation omitted). The court concluded that the challenge withstands constitutional review because "a sufficient nexus exists between the important government interest and the disqualification of domestic violence misdemeanants like Appellant.” M.
Michigan v. DeRoche (Mich. Ct. App.): State court says an individual may keep a firearm in his or her home while intoxicated so long as the firearm is not used unlawfully
On January 29, the Court of Appeals of Michigan found that a Michigan law providing that an individual “shall not carry, have in possession or under control, or use in any manner” a firearm while intoxicated, violated the Second Amendment as applied to the defendant.xiii The court concluded that the as-applied challenge did not withstand intermediate scrutiny because,
although the gun was in the defendant’s home, it was not physically in his possession while he was intoxicated. Applying a two-prong test to the Second Amendment challenge, the court found that the defendant’s conduct was within the scope of the Second Amendment since the defendant was not in possession of his firearm for any unlawful purpose, and “the prosecution has failed to establish that the conduct at issue had been historically outside the scope of the Second Amendment protection.” The court then analyzed the challenge under intermediate scrutiny, which it said was the applicable standard of review, because “the burden here does not amount to a severe burden on one’s Second Amendment rights, i.e., a complete ban on possession of a firearm in one’s home….” Although the court found that the state had an important interest in preventing intoxicated people from committing crimes, it said that, in this instance, because the defendant’s possession was merely constructive, it would be unreasonable to force a person, such as the defendant, who was not threatening to use a firearm illegally, to choose between keeping a firearm in his or her home and being intoxicated in his or her home. The court concluded, “the government’s legitimate concern is not that a person who has consumed alcohol is in the vicinity of a firearm, but that he actually has it in his physical possession.” N.
Tyler v. Holder (W.D. Mich.): District court dismisses challenge to federal law prohibiting firearm possession by individuals who have been involuntarily committed to a mental institution
On January 29, the U.S. District Court for the Western District of Michigan dismissed a Second Amendment challenge to the federal law prohibiting the possession of firearms by mentally ill individuals, finding that the law did not violate the plaintiff's Second Amendment rights.xiv The plaintiff, who had been involuntarily committed to a mental institution for less than a month twenty-seven years prior, argued that the law was unconstitutional as applied to him since there was no avenue available to him to petition for relief from the firearms disability or seek review as to his current risk of dangerousness. The defendant argued that the law was meant to apply to individuals who are currently mentally ill, rather than to individuals who used to be but are no longer mentally ill. The court reviewed the challenge under a two-prong test that is often used for reviewing Second Amendment challenges, and it explained that, because the federal definition of mentally ill persons includes those who have been involuntarily committed to a mental institution, individuals such as the plaintiff fall outside the scope of the Second Amendment. Nonetheless, the court conducted a scrutiny analysis under the second prong of the test and held that the as-applied challenge would also withstand intermediate scrutiny. Notably, citing Heller II and Justice Breyer’s dissent in Heller, the court rejected the application of strict scrutiny to Second Amendment challenges, explaining, “The Supreme Court has also implicitly rejected strict scrutiny review.” In explaining that the law withstands intermediate scrutiny, the court said, "Here, Defendants have presented sufficient evidence that Congress elected to rely on a person's history of past commitment and judicial adjudications of mental incompetence as indicators of a risk of gun-related violence. This 8
method for determining risk of dangerousness is reasonably related to the government's stated interests. Intermediate scrutiny does not require the individualized assessment of dangerousness that plaintiff requests." III.
Civil Litigation Raising Second Amendment Claims After Heller A.
Significant Pending Lawsuits
State and local governments – including New York City, Chicago, San Francisco, Boston, Los Angeles, Sacramento, San Diego, Denver, and the states of California, Colorado, Delaware, Hawaii, Maryland, Massachusetts, New Jersey, New York, New Mexico, Texas, and West Virginia – and the District of Columbia presently face fifty significant lawsuits challenging various firearms laws under the Second Amendment. Nearly half of these suits involve challenges to laws regulating the carrying of weapons in public, while others challenge registration laws, bans on unsafe handguns and assault weapons, and safe storage laws. Additionally, seven significant suits raising Second Amendment claims have been initiated against the federal government. For more information about all of the pending cases, please refer to the Post-Heller Litigation Summary Appendix at http://smartgunlaws.org/post-hellerlitigation-summary/. B.
Civil Suits Have Been Largely Unsuccessful
Generally, Second Amendment challenges by civil plaintiffs have been unsuccessful. In the wake of the Heller decision, for example, the District of Columbia adopted comprehensive firearms laws. In September 2011, the U.S. Court of Appeals for the D.C. Circuit affirmed in part and remanded in part the federal district court’s decision rejecting a Second Amendment challenge to many of those laws, including D.C.’s firearms registration system, ban on assault weapons and large capacity ammunition magazines, one-handgun-a-month law, and law requiring the reporting of lost or stolen firearms.xv Federal and state courts have also upheld laws requiring the registration of all firearms, xvi requiring an applicant for a license to carry a concealed weapon to show “good cause,” “proper cause,” or “need,” or qualify as a “suitable person,” xvii prohibiting the issuance of a concealed carry permit based on a misdemeanor assault conviction,xviii requiring an applicant for a handgun possession license to be a state residentxix or pay an administrative fee,xx requiring an applicant for a concealed carry license to be at least twenty-one years old,xxi prohibiting the sale of firearms and ammunition to individuals younger than twenty-one years old, xxii or to individuals who does not reside in any U.S. state,xxiii prohibiting domestic violence misdemeanants from possessing firearms,xxiv prohibiting the possession of firearms in places of worship, xxv in common areas of public housing units,xxvi and within college campus facilities and at campus events, xxvii and regulating gun shows held on public property.xxviii Additionally, a federal district court recently refused to enjoin enforcement of San Francisco ordinances requiring the safe storage of handguns in the home and prohibiting the sale of “particularly dangerous ammunition” that has no sporting purpose, having concluded that the plaintiffs 9
would be unlikely to show that the ordinances violate the Second Amendment.xxix A Pennsylvania court also recently upheld a state Department of Labor and Industry regulation prohibiting firearms on property owned or leased by the Department, including in vehicles parked on Department property.xxx In contrast to the majority of courts that have considered challenges to similar laws, a federal district court in Maryland recently struck down a requirement in state law that applicants for concealed carry permits show “a good and substantial reason” for carrying a firearm in order to obtain a permit to carry a firearm in public.xxxi Moreover, the U.S. Court of Appeals for the Seventh Circuit recently struck down an Illinois law banning the carrying of loaded and accessible firearms in public, calling the law “the most restrictive gun law of any of the 50 states.” xxxii Moreover, Additional outliers include a North Carolina trial court decision striking down a state law that prohibits felons from possessing firearms, xxxiii a North Carolina federal district court decision finding that a state law prohibiting the carrying of firearms during states of emergency violated the plaintiffs’ Second Amendment rights, xxxiv a Massachusetts federal district court decision finding that a U.S. citizenship requirement for possessing and carrying firearms violated the plaintiffs’ Second Amendment rights,xxxv and an Illinois federal district court decision striking down a provision of Chicago law that prohibits the possession of firearms by anyone who has been convicted in any jurisdiction of the unlawful use of a weapon. xxxvi Additionally, several courts have cited Heller in expressing concern about state action that would limit an individual’s right to possess a firearm where that person is not prohibited by law from doing so.xxxvii For example, a federal district court refused to dismiss a plaintiff’s suit alleging that Illinois’ licensing law violated the Second Amendment by preventing her from being able to possess a firearm for self-defense while she stayed in an Illinois friend’s home.xxxviii Additionally, the Seventh Circuit enjoined enforcement of a Chicago ordinance banning firing ranges within city limits where range training was a condition of lawful handgun ownership. xxxix IV.
Post-Heller Second Amendment Challenges by Criminal Defendants A.
Federal Firearms Statutes
Courts have almost uniformly rejected criminal defendants’ Second Amendment challenges to federal firearms laws, including challenges to laws prohibiting the possession of a firearm by a convicted felonxl or by anyone “employed for” a convicted felon (such as a bodyguard),xli possession of an illegal weapon (e.g., a machine gun, a sawed-off shotgun, a weapon with an obliterated serial number, or other prohibited weapon),xlii possession in violation of a court order,xliii possession by an illegal alien,xliv possession in a prohibited place,xlv possession by an individual who is under indictment for a felony, xlvi possession by an unlawful user of a controlled substance,xlvii and possession by a domestic violence misdemeanant. xlviii Courts have also rejected challenges to sentence enhancements for convicted criminals who possessed firearms while engaging in illegal activity.xlix
Notably, a few courts have cited Heller in decisions curtailing the federal government’s ability to penalize or prohibit otherwise lawful possession of a firearm during criminal proceedings.l Most notably, one federal district court in New York declared unconstitutional a federal law imposing a pretrial bail condition that would have prohibited the defendant from possessing firearms, although a Ninth Circuit panel directed a lower court to impose the same prohibition. li A federal court also dismissed an indictment for aiding and abetting the possession of a firearm by a convicted felon.lii In that case, the defendant, who was not prohibited by law from possessing guns, owned and kept a rifle in her home even though her boyfriend was a convicted felon. Because the government’s case was based on the defendant’s possession of the firearm within her home, the court concluded, to allow the indictment to proceed “would be countenancing the total elimination of the right of a sane, non-felonious citizen to possess a firearm…in her home.” A federal appellate court recently overturned the dismissal and remanded the case for further review.liii B.
State and Local Firearms Laws
Most courts that have heard criminal defendants’ Second Amendment challenges to state and local laws have upheld the statutes at issue.liv State courts have published decisions affirming state laws prohibiting the unlicensed carrying of handguns outside of the home, lv prohibiting the carrying of a concealed dirk or dagger outside of the home,lvi prohibiting convicted felons from possessing firearms,lvii prohibiting the possession of a firearm while intoxicated,lviii authorizing the seizure of firearms in cases of domestic violence,lix prohibiting the possession of assault weapons and 50-caliber rifles,lx requiring an individual to possess a license to own a handgun,lxi and imposing a mandatory prison sentence for possession of a firearm during the commission of a crime.lxii Notably, however, a Wisconsin trial court dismissed an indictment under the state’s former law that prohibited the carrying of concealed weapons because it found that the law violated the Second Amendment. lxiii Although the defendant was prosecuted for possessing a concealed knife while in an apartment, the court ignored relevant precedent that exempted possession in the home from Wisconsin’s concealed weapons prohibition. More recently, however, Wisconsin appellate courts have upheld the state’s former law prohibiting the carrying of concealed weapons in two separate decisions.lxiv Additionally, an Ohio trial court dismissed, on Second Amendment grounds, an indictment against a defendant for possession of a firearm following a conviction for a drug crime.lxv Moreover, a Michigan appellate court struck down a former state law prohibiting the possession of tasers and stun guns, concluding that the Second Amendment protects the possession and open carrying of those devices.lxvi Additionally, the District of Columbia Court of Appeals reversed a defendant’s conviction for unlawful possession of handgun ammunition, holding that the Second Amendment required the government to prove both that the defendant possessed the ammunition and that he did not possess a registration certificate for a weapon of the same caliber (where, under prior case law, proof of registration was only an affirmative defense available to defendants).lxvii 11
Separately, the D.C. Court of Appeals heard a Second Amendment challenge brought by an individual convicted of unlawful firearm possession prior to Heller. The appellant had been prosecuted for the possession of an unregistered firearm in his home, and the court remanded the case for a hearing to determine whether the appellant had, as he claimed, been in possession of the firearm for the constitutionally-protected purpose of self-defense.lxviii More recently, a federal district court in Maine acquitted an individual from charges under federal law for failing to disclose, when attempting to purchase a firearm, that he had been involuntarily committed to a mental institution pursuant to Maine law.lxix The court concluded that involuntary commitment under the Maine law, which allows emergency commitment of an individual without a hearing, could not serve to deprive an individual of future firearm rights. The court explained that, since Heller, “the right to possess arms…is no longer something that can be withdrawn by the government on a permanent and irrevocable basis without due process.” V.
Emerging Issues A.
How Strictly Courts Should Scrutinize Second Amendment Challenges
While the Heller Court established that a law completely prohibiting a responsible, law-abiding citizen from possessing an operable handgun in the home for self-defense would violate the Second Amendment, and further held that certain other types of laws are “presumptively lawful” against Second Amendment challenges, the Court did not explain how lower courts should evaluate Second Amendment challenges going forward. The Court did, however, suggest that evaluation using the “rational basis” test – holding that a law is constitutional if it is rationally related to a legitimate government interest – was not appropriate. Courts have summarily dismissed numerous Second Amendment challenges, concluding that the laws at issue are “presumptively lawful regulatory measures” explicitly protected in Heller.lxx In challenges after Heller that have considered how firearms laws should be evaluated, courts have typically chosen between two levels of heightened scrutiny often applied to constitutional rights: “intermediate scrutiny,” which examines whether there is a reasonable fit between the law and an important or significant government interest, and “strict scrutiny,” which examines whether a law is narrowly tailored to achieve a compelling government interest. Most appellate and district courts that have explicitly adopted a level of scrutiny, including Third, Fourth, Tenth, and D.C. Circuit panels, have applied intermediate scrutiny to Second Amendment challenges.lxxi Courts have arrived at intermediate scrutiny using differing approaches, but the clear trend suggests that laws that do not prevent a law-abiding, responsible citizen from possessing an operable handgun in the home for self-defense should face, and survive, an intermediate scrutiny review.
At the same time, a few courts have reviewed Second Amendment challenges under strict scrutiny.lxxii Several other courts have explained that different types of laws can trigger different levels of scrutiny under the Second Amendment. lxxiii Several courts have held that heightened scrutiny only applies where the challenged law substantially burdens conduct protected by the Second Amendment. Most recently, a Second Circuit decision did not identify which level of scrutiny ought to apply to Second Amendment challenges, but it did hold that heightened scrutiny is only warranted if the challenged law substantially burdens the Second Amendment.lxxiv In a subsequent decision, the Second Circuit concluded that intermediate scrutiny was the appropriate level of heightened scrutiny to be used for reviewing a challenge to New York’s concealed carry licensing scheme.lxxv A Ninth Circuit decision also adopted a substantial burden test for reviewing Second Amendment challenges; while that decision was subsequently vacated en banc, at least one lower court has found that it remains persuasive authority.lxxvi While intermediate scrutiny is most commonly used in Second Amendment cases, an Illinois appellate court recently applied rational basis review to uphold a state law prohibiting the carrying of guns in public.lxxvii The court reasoned that when the U.S. Supreme Court said in Heller and McDonald that rational basis review was inappropriate for Second Amendment challenges, it was referring only to challenges to the “core” Second Amendment right of a lawabiding citizen to possess a handgun in the home for self-defense. Similarly, a federal district court expressed hesitation about applying intermediate scrutiny in evaluating a Second Amendment challenge, stating that “intermediate scrutiny seems excessive.”lxxviii The court explained, “To place gun rights on the same high protected level as speech rights seems an odd view of American democratic values.” A Wisconsin appellate court recently applied a reasonableness test to uphold the constitutionality of Wisconsin’s now repealed law prohibiting concealed carry.lxxix In contrast to those decisions, however, an appellate court in Ohio determined that the trial court had erred in applying reasonableness review to uphold a law against a Second Amendment challenge and remanded the case with instructions that the trial court apply some form of heightened scrutiny.lxxx In almost every case, however, regardless of the test or level of scrutiny that has been applied, the Second Amendment challenge has been rejected and the statute at issue has been upheld. Still, the scrutiny issue remains a central component of much ongoing Second Amendment litigation. B.
Whether the Second Amendment Right Extends Beyond the Home
Another of the key questions presently being litigated in post-Heller suits is whether or to what extent the Second Amendment should apply outside of the home. In Heller, the Supreme Court held that the Amendment protects a right to possess a firearm within the home, “where the need for defense of self, family, and property is most acute.” The Court emphasized that the right protected is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to 13
consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.” The Court also declared that laws prohibiting firearm possession in sensitive places (including schools and government buildings) were presumptively lawful. In evaluating Second Amendment challenges related to conduct outside the home, a significant number of courts have concluded that the Amendment only protects conduct within the home.lxxxi However, three federal district courts in the Fourth Circuit have extended the Second Amendment’s protection beyond the home, and the U.S. Courts of Appeals for the Second and Seventh Circuits have determined that the Second Amendment applies, or likely applies, outside the home.lxxxii Other courts have deferred the question of whether the Second Amendment applies outside the home, but have ultimately upheld restrictions on firearm possession in public places.lxxxiii Even the few courts that have suggested that some form of Second Amendment protection ought to extend outside the home have generally upheld laws restricting firearm possession in public places.lxxxiv VI.
Because of the Supreme Court’s decisions in Heller and McDonald, the nation’s lower courts are clogged with a substantial volume of Second Amendment litigation, despite the fact that most, if not all, federal, state and local firearms laws do not prevent a responsible, law-abiding citizen from possessing an operable handgun in the home for self-defense, and thus, would satisfy the Supreme Court’s holdings. Going forward, the gun lobby will likely continue to employ the threat of litigation to obstruct state and local efforts to enact common sense gun violence prevention measures. Policymakers should rest assured, however, that nothing in either Heller or McDonald prevents the adoption of many types of reasonable laws to reduce gun violence.
United States v. Carter, 2012 U.S. Dist. LEXIS 168011 (S.D. W. Va. Nov. 27, 2012). United States v. Davis, 2012 U.S. Dist. LEXIS 169262 (S.D. W. Va. Nov. 29, 2012). iii United States v. Stegmeier, 701 F.3d 574 (8th Cir. 2012). iv United States v. Khatib, 2012 U.S. Dist. LEXIS 173143 (E.D. Wis. Dec. 6, 2012). v United States v. Carpio-Leon, 701 F.3d 974 (4th Cir. 2012). vi State v. Rush, 2012 Ohio 5919 (Ohio Ct. App. 2012). vii Johnston v. State, 735 S.E.2d 859 (N.C. Ct. App. 2012). viii Williams v. Puerto Rico, 2012 U.S. Dist. LEXIS 181402 (D.P.R. Dec. 21, 2012). ix Lane v. Holder, 2012 U.S. App. LEXIS 26640 (4th Cir. Dec. 31, 2012). x United States v. Pruess, 2012 U.S. App. LEXIS 26641 (4th Cir. Dec. 31, 2012) xi Schrader v. Holder, 2013 U.S. App. LEXIS 730 (D.C. Cir. Jan. 11, 2013). xii United States v. Armstrong, 2013 U.S. App. LEXIS 1350 (1st Cir. Jan. 18, 2013). xiii People v. DeRoche, 2013 Mich. App. LEXIS 181 (Mich. Ct. App. Jan. 29, 2013). xiv Tyler v. Holder, 2013 U.S. Dist. LEXIS 11511 (W.D. Mich. Jan. 29, 2013). ii
Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011); See also Wilson v. Cook County, 943 N.E.2d 768 (Ill. App. Ct. 2011) (upholding Cook County, Illinois ordinance prohibiting the possession of assault weapons and large capacity ammunition magazines), reh’g granted by 949 N.E.2d 1104 (Ill. 2011). xvi Justice v. Town of Cicero, 577 F.3d 768 (7th Cir. Ill. 2009) (finding that registration “merely regulated gun possession” rather than prohibiting it), cert. denied, 177 L. Ed. 2d 323 (2010). xvii Young v. Hawaii, 2012 U.S. Dist. LEXIS 169260 (D. Haw. Nov. 29, 2012); Kachalsky v. Cacace, 701 F.3d 81 (2d Cir. 2012); Raulinaitis v. Los Angeles Sheriff’s Dept., No. 11-08026 (C.D. Cal. Aug. 13, 2012); Birdt v. Beck, No. 10-08377 (C.D. Cal. Jan. 13, 2012); Piszczatoski v. Filko, 2012 U.S. Dist. LEXIS 4293 (D. N.J. Jan. 12, 2012); Hightower v. Boston, 693 F.3d 61 (1st Cir. 2012); Kuck v. Danaher, 2011 U.S. Dist. LEXIS 111793 (D. Conn. 2011); Richards v. County of Yolo, 821 F. Supp. 2d 1169 (E.D. Cal. 2011); Peruta v. County of San Diego, 758 F. Supp. 2d 1106 (S.D. Cal. 2010). xviii Kelly v. Riley, 733 S.E.2d 194 (N.C. Ct. App. Nov. 6, 2012). xix Osterweil v. Bartlett, 819 F. Supp. 2d 72 (N.D.N.Y 2011). xx Kwong v. Bloomberg, 2012 U.S. Dist. LEXIS 41218 (S.D.N.Y. Mar. 26, 2012). xxi Jennings v. McCraw, No. 10-00141 (order dated 1/19/12) (unpublished) (appeal pending). xxii th Nat’l Rifle Ass’n v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 2012 U.S. App. LEXIS 22197 (5 Cir. Oct. 25, 2012) xxiii Dearth v. Holder, 2012 U.S. Dist. LEXIS 138697 (D.D.C. Sept. 27, 2012). xxiv Enos v. Holder, 2012 U.S. Dist. LEXIS 25759 (E.D. Cal. Feb. 28, 2012). xxv GeorgiaCarry.Org, Inc. v. Georgia, 764 F. Supp. 2d 1306 (M.D. Ga. 2011), aff’d, 687 F.3d 1244 (11th Cir. 2012). xxvi Doe v. Wilmington Hous. Auth., 2012 U.S. Dist. LEXIS 104976 (D. Del. July 27, 2012). xxvii Digiacinto v. Rector & Visitors of George Mason Univ., 704 S.E.2d 365 (Va. 2011) (noting that weapons were prohibited “only in those places where people congregate and are most vulnerable…Individuals may still carry or possess weapons on the open grounds of GMU, and in other places on campus not enumerated in the regulation.”); Tribble v. State Bd. of Educ., No. 11-0069 (Dist. Ct. Idaho December 7, 2011) (upholding a University of Idaho policy prohibiting firearms in University-owned housing). xxviii Nordyke v. King, 2012 U.S. App. LEXIS 11076 (9th Cir. June 1, 2012) (en banc). xxix Jackson v. City and County of San Francisco, 2012 U.S. Dist. LEXIS 116732 (Aug. 17, 2012). xxx Perry v. State Civ. Serv. Comm'n, 2011 Pa. Commw. Unpub. LEXIS 919 (Pa. Commw. Ct. Nov. 14, 2011). xxxi Woollard v. Sheridan, 2012 U.S. Dist. LEXIS 28498 (D. Md. March 2, 2012). xxxii Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012) (but suggesting that Illinois adopt a discretionary concealed carry licensing scheme). xxxiii Johnston v. North Carolina, No. 10-S281, slip op. (N.C. Superior Ct. October 24, 2011) (overturning a North Carolina law prohibiting felons from possessing firearms), rev’d, 735 S.E.2d 859 (N.C. Ct. App. 2012). xxxiv Bateman v. Perdue, 2012 U.S. Dist. LEXIS 47336 (E.D.N.C. Mar. 29, 2012). xxxv Fletcher v. Haas, 2012 U.S. Dist. LEXIS 44623 (D. Mass. Mar. 30, 2012). xxxvi Gowder v. City of Chicago, 2012 U.S. Dist. LEXIS 84359 (N.D. Ill. June 19, 2012). xxxvii Simmons v. Gillespie, 2008 U.S. Dist. LEXIS 81424 (C.D. Ill. Aug. 1, 2008) (finding possible Second Amendment violation where police chief issued personnel memorandum forbidding employee from possessing firearms offduty); Cleveland v. Fulton, 898 N.E.2d 983 (Ohio Ct. App. 2008) (finding due process violation in city’s refusal to return firearm to person acquitted of gun crimes); Jennings v. Mukasey, 2008 U.S. Dist. LEXIS 82465 (M.D. Fla. Sept. 22, 2008) (finding possible Second Amendment claim in alleged government threat to prosecute individual if he lawfully pursued work in the firearms industry). xxxviii Mishaga v. Monken, 753 F. Supp. 2d 750 (C.D. Ill. 2010). xxxix Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011). xl See, e.g., United States v. Moore, 2012 U.S. App. LEXIS 1335 (4th Cir. Jan. 25, 2012); United States v. Torresst Rosario, 658 F.3d 110 (1 Cir. 2011); United States v. Williams, 616 F.3d 685 (7th Cir. 2010); United States v. Anderson, 559 F.3d 348 (5th Cir. 2009); United States v. Rhodes, 2012 U.S. Dist. LEXIS 76363 (S.D. W. Va. June 1, 2012); United States v. Edge, 2012 U.S. Dist. LEXIS 15002 (W.D.N.C. Feb. 8, 2012); United States v. Loveland, 2011 U.S. Dist. LEXIS 119954 (W.D.N.C. 2011); United States v. Kirkpatrick, 2011 U.S. Dist. LEXIS 82801 (W.D.N.C. July 27, 2011). xli United States v. Weaver, 2012 U.S. Dist. LEXIS 29613 (S.D. W. Va. Mar. 7, 2012).
See, e.g., United States v. Henry, 688 F.3d 637 (9th Cir. 2012); United States v. Zaleski, 2012 U.S. App. LEXIS 14341 (2d Cir. July 13, 2012); United States v. Colon-Quiles, 2012 U.S. Dist. LEXIS 62587 (D.P.R. May 4, 2012); United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010) (affirming conviction for possession of a firearm with an obliterated serial number); United States v. Fincher, 538 F.3d 868 (8th Cir. 2008), cert. denied, 129 S. Ct. 1369 (2009). xliii See, e.g., United States v. Larson, 2012 U.S. Dist. LEXIS 19817 (W.D. Va. Feb. 16, 2012) (upholding federal law prohibiting individuals who are subject to domestic violence-related court orders from possessing firearms); United States v. Chapman, 2012 U.S. App. LEXIS 57 (4th Cir. Jan. 4, 2012); United States v. Luedtke, 589 F. Supp. 2d 1018 (E.D. Wis. 2008); United States v. Mudlock, 2012 U.S. App. LEXIS 12617 (4th Cir. June 19, 2012). xliv United States v. Alkhaldi, 2012 U.S. Dist. LEXIS 158867 (E.D. Ark. Sept. 17, 2012); United States v. Huitron-Guizar, 2012 U.S. App. LEXIS 9256 (10th Cir. May 7, 2012); United States v. Portillo-Munoz, 643 F.3d 437 (5th Cir. 2011). xlv See, e.g., United States v. Masciandaro, 638 F.3d 458 (4th Cir. Va. 2011) (affirming defendant’s conviction for possession of a loaded weapon in a motor vehicle in a national park); United States v. Lewis, 50 V.I. 995 (D.V.I. 2008). xlvi United States v. Laurent, 2011 U.S. Dist. LEXIS 139907 (E.D.N.Y. 2011); United States v. Call, 2012 U.S. Dist. LEXIS 79080 (D. Nev. June 7, 2012). xlvii See, e.g., United State v. Emond, 2012 U.S. Dist. LEXIS 149295 (D. Me Oct. 17, 2012); United States v. Carter, 2012 U.S. App. LEXIS 1243 (4th Cir. Jan. 23, 2012); United States v. Prince, 2009 U.S. Dist. LEXIS 54116 (D. Kan. June 26, 2009); United States v. Bumm, 2009 U.S. Dist. LEXIS 34264 (S.D. W. Va. Apr. 17, 2009); Piscitello v. Bragg, 2009 U.S. Dist. LEXIS 21658 (W.D. Tex. Feb. 18, 2009). xlviii See, e.g., United States v. Chester, 2012 U.S. Dist. LEXIS 16821 (S.D. W. Va. Feb. 10, 2012); United States v. Staten, 666 F.3d 154 (4th Cir. 2011); United States v. Skoien, 614 F.3d 638 (7th Cir. 2010); United States v. White, 593 F.3d 1199 (11th Cir. 2010); United States v. Booker, 644 F.3d 12 (1st Cir. 2011); United States v. Holbrook, 613 F. Supp. 2d 745 (W.D. Va. 2009). See also In re United States, 578 F.3d 1195 (10th Cir. 2009). xlix United States v. Greeno, 2012 U.S. App. LEXIS 10147 (6th Cir. May 21, 2012). l United States v. Kitsch, 2008 U.S. Dist. LEXIS 58904 (E.D. Pa. Aug. 1, 2008) (holding that the government needed to prove that the defendant charged under the federal felon-in-possession statute had knowledge that he was a felon after he had been previously told by law enforcement that his conviction would be set aside). li th United States v. Arzberger, 592 F. Supp. 2d 590 (S.D.N.Y. 2008); United States v. Kennedy, 327 Fed. Appx. 706 (9 Cir. 2009). lii United States v. Huet, 2010 U.S. Dist. LEXIS 123597 (W.D. Pa. Nov. 22, 2010). See also United States v. Skeens, 589 F. Supp. 2d 757 (W.D. Va. 2008) (refusing to enhance a defendant’s sentence for illegal firearm possession where a handgun found in his home was owned by the defendant’s wife for self-defense). liii United States v. Huet, 2012 U.S. App. LEXIS 133 (4th Cir. Jan. 5, 2012). liv See, e.g., Wilson v. Alaska, 207 P.3d 565 (Alaska Ct. App. 2009) (upholding statute prohibiting handgun possession by felons); People v. Flores, 86 Cal. Rptr. 3d 804 (Cal. App. 4th Dist. 2008) (upholding statues prohibiting possession following misdemeanor conviction, carrying of a concealed firearm, and carrying of a loaded firearm in a public place); People v. Akins, 2011 Ill. App. Unpub. LEXIS 1838 (Ill. App. Ct. Aug. 3, 2011) and People v. Palmer, 2011 Ill. App. Unpub. LEXIS 2055 (Ill. App. Ct. Aug. 26, 2011) (both upholding a state prohibition on carrying or possessing a firearm when certain aggravating circumstances are present); People v. Thomas, 2011 Ill. App. Unpub. LEXIS 2000 (Ill. App. Ct. Aug. 22, 2011) and People v. Pinkard, 2011 Ill. App. Unpub. LEXIS 2098 (Ill App. Ct. Sept. 2, 2011) (both upholding a statute prohibiting individuals who have been convicted of two or more enumerated offenses to receive, sell, possess, or transfer any firearm). liv People v. Dawson, 403 Ill. App. 3d 499, 510, 934 N.E.2d 598, 343 Ill. Dec. 274 (2010). lv Ohio v. Henderson, 2012 Ohio 1268, 2012 Ohio App. LEXIS 1117 (Ohio Ct. App. Mar. 26, 2012); Oregon & Portland v. Christian, 2012 Ore. App. LEXIS 344 (Or. Ct. App. Mar. 21, 2012); Williams v. Maryland, 10 A.3d 1167, 1178 (Md. 2011); People v. Mimes, 953 N.E.2d 55 (Ill. App. Ct. 2011); People v. Montyce H., 2011 Ill. App. LEXIS 1184 (Ill. App. Ct. 2011); People v. Williams, 962 N.E.2d 1148 (Ill. App. Ct. 2011). th lvi People v. Mitchell, 209 Cal. App. 4 1364 (Cal. Ct. App. 2012).
Wisconsin v. Pocian, 2012 Wisc. App. LEXIS 298 (Wis. Ct. App. Apr. 11, 2012); People v. Spencer, 2012 Ill. App. LEXIS 82 (Ill. App. Ct. Feb. 6, 2012); Pohlabel v. Nevada, 2012 Nev. LEXIS 2 (Nev. Jan. 26, 2012); People v. Polk, 2011 Ill. App. Unpub. LEXIS 2278 (Ill. App. Ct. Sept. 23, 2011). lviii Ohio v. Beyer, 2012 Ohio 4578 (Ohio Ct. App. 2012). lix Crespo v. Crespo, 989 A.2d 827 (N.J. 2010). lx People v. Arizmendi, 2011 Cal. App. Unpub. LEXIS 7284 (Cal. App. Ct. Sept. 27, 2011); People v. James, 174 Cal. App. 4th 662 (Cal. App. 3rd Dist. 2009). lxi People v. Perkins, 880 N.Y.S.2d 209 (N.Y. App. Div. 2009). lxii Ohio v. Israel, 2012 Ohio 4876 (Ohio Ct. App. 2012). lxiii Nevada v. Schultz, No. 10-CM-138 (Clark Cty. Cir. Ct. Oct. 12, 2010). lxiv Wisconsin v. Brown, 2012 Wisc. App. LEXIS 305 (Wis. Ct. App. Apr. 17, 2012); Wisconsin v. Little, 2012 Wisc. App. LEXIS 66 (Wisc. Ct. App. Jan. 26, 2012). lxv Ohio v. Tomas, No. 526776 (Ohio Ct. Com. Pl. Dec. 7, 2010) (finding that “the State has no compelling interest in prohibiting this particular defendant from possessing firearms in his place of business and home” and declaring the statute “unconstitutional when a Defendant with no felony convictions…possesses firearms in his home or business, for the limited purpose of self-defense.”) lxvi Michigan v. Yanna, 2012 Mich. App. LEXIS 1269 (Mich. Ct. App. June 26, 2012). Notably, prior to this decision, the former law at issue was replaced by a new law that allows the carrying of a taser or stun gun with a valid concealed weapon license. lxvii Herrington v. United States, 6 A.3d 1237 (D.C. 2010). lxviii Magnus v. United States, 2011 D.C. App. LEXIS 3 (Jan. 6, 2011). lxix United States v. Spring, 2012 U.S. Dist. LEXIS 112081 (D. Me. Aug. 9, 2012). lxx See, e.g., Enos v. Holder, 2012 U.S. Dist. LEXIS 25759 (E.D. Cal. Feb. 28, 2012); United States v. Edge, 2012 U.S. Dist. LEXIS 15002 (W.D.N.C. Feb. 8, 2012); Cf,. People v. Spencer, 2012 Ill. App. LEXIS 82 (Ill. App. Ct. Feb. 6, 2012) (applying intermediate scrutiny to uphold a law because the law is presumptively valid). lxxi United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010); United States v. Masciandaro, 638 F.3d 458 (4th Cir. Va. 2011); United States v. Williams, 616 F.3d 685 (7th Cir. 2010); United States v. Skoien, 614 F.3d 638 (7th Cir. 2010); United States v. Reese, 627 F.3d 792 (10th Cir. 2010); Heller v. District of Columbia, 698 F. Supp. 2d 179 (D.D.C. 2010), aff’d in part and vacated in part, 670 F.3d 1244 (D.C. Cir. 2011). lxxii See Bateman v. Perdue, 2012 U.S. Dist. LEXIS 47336 (E.D.N.C. Mar. 29, 2012); United States v. Bay, 2009 U.S. Dist. LEXIS 106874 (D. Utah Nov. 13, 2009); United States v. Engstrum, 2009 U.S. Dist. LEXIS 33072 (D. Utah Apr. 17, 2009), but see In re United States, 578 F.3d 1195 (10th Cir. 2009); United States v. Luedtke, 589 F. Supp. 2d 1018 (E.D. Wis. Nov. 18, 2008); United States v. Erwin, 2008 U.S. Dist. LEXIS 78148 (N.D.N.Y. Oct. 6, 2008). lxxiii Ezell, 651 F.3d 684 at 44 (explaining that the level of applicable scrutiny should be determined by “how close the law comes to the core of the Second Amendment right and the severity of the law's burden on the right”); Gowder v. City of Chicago, 2012 U.S. Dist. LEXIS 84359 (N.D. Ill. June 19, 2012); Nat’l Rifle Ass’n v. Bureau of th Alcohol, Tobacco, Firearms, and Explosives, 2012 U.S. App. LEXIS 22197 (5 Cir. Oct. 25, 2012). lxxiv United States v. Decastro, 2012 U.S. App. LEXIS 11213 (2d Cir. June 1, 2012). lxxv Kachalsky v. Cacace, 701 F.3d 81 (2d Cir. 2012). lxxvi Nordyke v. King, 644 F.3d 776 (9th Cir. 2011) (adopting the substantial burden test), vacated en banc, 2012 U.S. App. LEXIS 11076 (9th Cir. June 1, 2012). See Scocca v. Smith, 2012 U.S. Dist. LEXIS 87025 (N.D. Cal. June 22, 2012) (finding that while the Nordyke appellate panel decision is no longer binding precedent it remains persuasive authority). lxxvii People v. Williams, 962 N.E.2d 1148 (Ill. App. Ct. 2011). lxxviii United States v. Laurent, 2011 U.S. Dist. LEXIS 139907 (E.D.N.Y. 2011). lxxix Wisconsin v. Brown, 2012 Wisc. App. LEXIS 305 (Wis. Ct. App. Apr. 17, 2012). lxxx Ohio v. Shover, 2012 Ohio 3788 (Ohio Ct. App. 2012). lxxxi See Jennings v. McCraw, No. 10-00141 (order dated 1/19/12) (unpublished)(appeal pending); Palmer, 2011 Ill. App. Unpub. LEXIS 2055 at 18; Akins, 2011 Ill. App. Unpub. LEXIS 1838 at P10; New Jersey v. Robinson, 2011 N.J. Super. Unpub. LEXIS 2274 (App. Div. Aug. 23, 2011); Richards v. County of Yolo, 2011 U.S. Dist. LEXIS 51906 (E.D. Cal. May 16, 2011); Williams v. Maryland, 10 A.3d 1167, 1178 (Md. 2011); People v. Dawson, 934 N.E.2d 598 (Ill.
App. Ct. 2010), cert. denied by Dawson v. Illinois, 131 S. Ct. 2880 (U.S. 2011); People v. Yarbrough, 86 Cal. Rptr. 3d 674 (Cal. Ct. App. 2008), review denied by People v. Yarbrough (Ronnie), 2009 Cal. LEXIS 2948 (Cal., Mar. 18, 2009); People v. Williams, 962 N.E.2d 1148 (Ill. App. Ct. 2011); In re Matter of Kelly, 2012 N.Y. Misc. LEXIS 369 (N.Y. App. Div. June 13, 2012). lxxxii Woollard v. Sheridan, 2012 U.S. Dist. LEXIS 28498 (D. Md. March 2, 2012); United States v. Weaver, 2012 U.S. Dist. LEXIS 29613 (S.D. W. Va. Mar. 7, 2012); Bateman v. Perdue, 2012 U.S. Dist. LEXIS 47336 (E.D.N.C. Mar. 29, 2012); Kachalsky v. Cacace, 701 F.3d 81 (2d Cir. 2012)(explaining, “Although the Supreme Court's cases applying the Second Amendment have arisen only in connection with prohibitions on the possession of firearms in the home, the Court's analysis suggests…that the Amendment must have some application in the very different context of the public possession of firearms.”) ; Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012)(explaining, “Heller repeatedly invokes a broader Second Amendment right than the right to have a gun in one’s home…”) lxxxiii Young v. Hawaii, 2012 U.S. Dist. LEXIS 169260 (D. Haw. Nov. 29, 2012); United States v. Masciandaro, 638 F.3d 458 (4th Cir. Va. 2011); Peruta v. County of San Diego, 758 F. Supp. 2d 1106 (S.D. Cal. 2010). lxxxiv Hall v. Garcia. 2011 U.S. Dist. LEXIS 34081 (N.D. Cal. Mar. 17, 2011); Mimes, 953 N.E.2d 55 (Illinois appellate court found that a law prohibiting guns in public “imposes a burden on the inherent right of self-defense” but nonetheless upheld the law under intermediate scrutiny.) But see Nevada v. Schultz, No. 10-CM-138 (Clark Cty. Cir. Ct. Oct. 12, 2010) (Wisconsin trial court dismissing an indictment under the state’s law prohibiting the carrying of concealed weapons as violating the Second Amendment).