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RECENT DEVELOPMENTS IN SECOND AMENDMENT LITIGATION Updated May 22, 2013 The following significant developments have occurred in Second Amendment litigation between March 26, 2013 and May 22, 2013. A.

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 controversial landmark decision in District of Columbia v. Heller, 554 U.S. 570 (2008). This update summarizes the most significant recent lawsuits that have been filed and decisions that have been issued related to the Second Amendment. Our more comprehensive analysis and overview of all the Second Amendment decisions since Heller can be found in the Post-Heller Litigation Summary. Our detailed summary of the status of ongoing significant Second Amendment litigation can be found in the Post-Heller Litigation Summary Appendix. Both the Summary and the Appendix are available at http://smartgunlaws.org/post-hellerlitigation-summary/. B.

New Lawsuits

Cooke et al. v. Hickenlooper (D. Colo.): New lawsuit challenges Colorado’s recent ammunition magazine limit and background check requirement1 On May 17, numerous county sheriffs, several local gun organizations, and a handful of individual plaintiffs filed suit in the U.S. District Court for the District of Colorado challenging Colorado’s recently enacted law prohibiting the sale of ammunition magazines capable of holding more than 15 rounds of ammunition and requiring background checks for most transfers of firearms. The plaintiffs allege that both laws violate the Second Amendment, that the magazine limit is unconstitutionally vague in violation of the Due Process Clause, and that the magazine limit constitutes a violation of the Americans with Disabilities Act since it discriminates against persons with disabilities who are “unable to change magazines as quickly, and unable to retreat to positions of safety where a magazine can be changed.” Shew v. Malloy (D. Conn.): New Lawsuit Challenges Connecticut’s Post-Newtown Assault Weapons Ban2 On May 22, several local pro-gun groups and several individual plaintiffs filed a lawsuit challenging Connecticut’s recently enacted “Act Concerning Gun Violence Prevention and Children’s Safety,” which, among other things, broadens the types of assault weapons banned 1 2

Cooke v. Hickenlooper, No. 13-01300 (D. Colo. filed May 17, 2013) Shew v. Malloy, No. 13-00739 (D. Conn. Filed May 22, 2013)


in Connecticut to include all guns bearing a single assault weapon feature and prohibits the sale of ammunition magazines capable of holding more than 10 rounds. The lawsuit—which is very similar to the lawsuits filed in Colorado and New York challenging similar laws—claims that these provisions violate the Second Amendment by prohibiting commonly possessed weapons and ammunition. It claims that certain individuals such as persons with disabilities need the large capacity magazines and assault weapons features in order to effectively defend themselves. The lawsuit also includes a claim that each of these provisions violates the Equal Protection Clause by allowing military personnel and certain state employees to possess these weapons and magazines while not allowing other citizens to possess them. Schoepf et al. v. Lindley at al. (Cal. Sup. Ct.): New lawsuit challenges the California Department of Justice’s practices with respect to conducting background checks for gun purchasers3 On April 11, the Calguns Foundation and several individual plaintiffs filed suit in California state court in Fresno challenging the California Department of Justice’s (“DOJ”) administration of the state’s background check requirement. Specifically, the complaint alleges that DOJ responds to some background check requests by stating that there is insufficient information to determine whether the individual is qualified to own a firearm and either (1) instructing the purchaser that he or she must affirmatively demonstrate to DOJ that he or she is qualified or (2) instructing the purchaser to wait for an indefinite period until DOJ obtains additional information. The plaintiffs allege that this practice violates the California statutes related to the administration of the background checks, the Second Amendment, and the Fourteenth Amendment’s Due Process Clause and Equal Protection Clause. Birdt v. San Bernardino Sheriff’s Department (C.D. Cal.): New lawsuit challenges San Bernardino County’s application of California’s concealed carry permit statute4 On April 12, an individual plaintiff (who is also litigating a similar lawsuit against Los Angeles County) filed suit in the U.S. District Court for the Central District of California challenging the San Bernardino County Sheriff’s Department’s (“SBSD”) denial of his application for a CCW permit. The plaintiff alleges that the SBSD refused to provide a reason for the denial of his permit application and therefore SBSD’s application of California’s concealed carry law violates the Second Amendment. Lajous et al. v. Bruning et al. (D. Neb.): New lawsuit challenges citizenship requirement for Nebraska concealed carry permit statute5 On April 1, the Second Amendment Foundation, a local gun rights group, and an individual plaintiff (who is a legal permanent resident) filed suit in the U.S. District Court for the District of 3

Schoepf v. Lindley, 13CECG01132 (Cal. Sup. Ct. Fresno filed Apr. 11, 2013). Birdt v. San Bernardio County Sheriff’s Department, No. 13-00673 (C.D. Cal. filed Apr. 12, 2013). 5 Lajous v. Bruning, No. 13-03070 (D. Neb. filed Apr. 1, 2013). 4


Nebraska challenging that state’s law restricting concealed carry permits only to citizens. The plaintiffs claim that the refusal to issue permits to legal permanent residents violates the Fourteenth Amendment’s Equal Protection Clause and the Second Amendment. The plaintiffs also claim that the state’s law in this area is preempted by federal immigration laws. C.

New Decisions

NRA v. ATF (5th Cir.): Appellate court denies petition for rehearing en banc of decision upholding federal laws prohibiting the sale of handguns to persons under 216 A panel of the Fifth Circuit previously held that the federal law barring licensed gun dealers from selling handguns or handgun ammunition to persons less than 21 years old did not violate the Second Amendment. The panel expressed skepticism that a right of persons under 21 to bear arms fell within the scope of the Second Amendment, but found that even if the law did fall within the Second Amendment’s scope, it would satisfy intermediate scrutiny. Here, the full court, by an 8-7 vote, rejected the plaintiffs' petition for rehearing en banc. In a lengthy dissent joined by all but one of the dissenting judges, Judge Edith Jones explained that she would have found that the historical right protected by the Second Amendment did protect the rights of persons between 18 and 20 to own firearms. She was also skeptical of the panel's application of intermediate scrutiny rather than strict scrutiny, but found that even applying intermediate scrutiny, the law should fail. NRA v. McCraw (5th Cir.): Fifth Circuit upholds Texas law prohibiting the concealed or open carrying of handguns by persons under 21 outside of their home or vehicle 7 Noting that the court was bound by another panel’s recent decision in NRA v. ATF (discussed above), the court rejected a challenge by the NRA and several individual plaintiffs to a Texas law that forbids persons under 21 from carrying a handgun outside of their home or vehicle. The court conducted the same two pronged analysis as the court in the ATF case and found: (1) that the law did not restrict conduct within the scope of the Second Amendment because restrictions on persons under 21 using firearms outside the home were “longstanding prohibitions” under Heller; and (2) that even if the law did restrict conduct within the scope of the Second Amendment, it would satisfy intermediate scrutiny because it is reasonably related to the important governmental interest in preventing violent crime since it restricts access to guns to an age group particularly likely to engage in such crimes. Plastino v. Koster (E.D. Mo.): District court denies plaintiffs’ motion for a preliminary injunction in challenge to restriction on concealed carry permits to non-citizens8 6

NRA v. ATF, 2013 U.S. App. LEXIS 8779 (5th Cir. Apr. 30, 2013). NRA v. McCraw, 2013 U.S. App. LEXIS 10128 (5th Cir. May 20, 2013). 8 Plastino v. Koster, 2013 U.S. Dist. LEXIS 58544 (E.D. Mo. Apr. 24, 2013). 7


The court rejected plaintiffs’ motion for a preliminary injunction by finding that plaintiffs failed to demonstrate irreparable harm. The court rejected the plaintiffs’ argument that they were irreparably harmed by the deprivation of their constitutional right to carry a concealed weapon because the court found that such a right was not protected by the Second Amendment, citing the Supreme Court’s 1897 decision in Robertson v. Baldwin which noted that “the right of the people to keep and bear arms . . . is not infringed by laws prohibiting the carrying of concealed weapons.” People v. Davis (Cal. App.): California Court of Appeals rejects challenge to statute prohibiting the possession of a “billy.”9 The court rejected a criminal defendant's Second Amendment challenge to his conviction under a statute that prohibits the possession of "billys" (in this case, a modified baseball bat). The court found that it need not decide whether a billy was protected by the Second Amendment because in this case, the defendant was found in possession of the billy outside of his home. The court held that the Second Amendment did not protect a right to carry weapons outside the home. The court also noted that, even if the Second Amendment did extend outside the home, the statute would still be valid because it is a prohibition on a type of weapon that is generally used for criminal purposes.

9

People v. Davis, 214 Cal. App. 4th 1322 (2013).


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