Recent developments in second amendment litigation october

RECENT DEVELOPMENTS IN SECOND AMENDMENT LITIGATION Updated October 17, 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). In that 5-4 decision, the court held for the first time that the Second Amendment protects an individual right of law-abiding, responsible citizens to keep a handgun in the home for self-defense. This update summarizes the most significant recent Second Amendment lawsuits and decisions. Our more comprehensive analysis and overview of all the Second Amendment decisions since Heller can be found in the Post-Heller Litigation Summary available at http://smartgunlaws.org/post-heller-litigation-summary/.

B.

New Lawsuits

Morris v. U.S. Army Corps of Engineers (D. Idaho): New lawsuit challenges U.S. Army Corps of Engineers’ policy of prohibiting guns on Corps-administered public lands On August 5, several individual plaintiffs, represented by a conservative non-profit organization, filed this lawsuit alleging the U.S. Army Corps of Engineers’ policy prohibiting firearms on Corpsadministered public lands (particularly, Corps-administered recreational water lands, such as lakes and rivers). The plaintiffs are concealed carry license holders and wish to carry guns with them to these parks while the engage in recreational activities, including camping.

Interestingly, they allege two separate Second Amendment violations in their complaint. They make one claim that they have a right to carry guns in public (either openly or concealed) and another claim that they have a right to have a gun in their tent when they are camping because a tent is a dwelling like a home. The plaintiffs filed a motion for a preliminary injunction the same day they filed the complaint.

Owen v. Lindley (E.D. Cal.): New lawsuit challenges California Department of Justice’s policy related to the administration of background checks On September 19, the Calguns Foundation and several individual plaintiffs filed suit in California state court in Fresno challenging the California Department of Justice’s (“Cal DOJ”) administration of the state’s background check requirement. Specifically, the complaint alleges that the Cal 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 within the statutory period and either: (1) instructing the purchaser that he or she must

demonstrate to Cal DOJ that he or she is qualified; or (2) instructing the purchaser to wait for an indefinite period until the Cal 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, the Takings Clause, and the Fourteenth Amendment’s Due Process Clause.

Note that this lawsuit is very similar to a state court lawsuit also involving the Calguns Foundation that was filed earlier this year (the state court suit is still pending).

C.

New Decisions

Teixeira v. County of Alameda (N.D. Cal.): District Court Upholds Gun Dealer Zoning Ordinance The court granted the defendants’ motion to dismiss a complaint challenging Alameda County’s gun dealer ordinance that requires a gun dealer to obtain a city permit and—among other things—does not allow a gun dealer to operate within 500 feet of a residentially zoned area, school, liquor store, or other gun dealer. In granting the motion, the court rejected the challenge. The court held that the law was a “presumptively lawful” measure under Heller because it concerned “conditions and qualifications on the commercial sale of arms,” a category of regulation the Supreme Court specifically exempted from higher Second Amendment scrutiny in Heller. The court also noted that “the Ordinance shares the same concerns as ‘laws forbidding the carrying of firearms in sensitive places’ [which were also specifically mentioned as presumptively lawful in Heller] because it requires the selling of guns to occur at least 500 feet away from schools, residences, establishments that sell liquor, and other gun stores.” Thus, the court held that the law was valid under the Second Amendment, and that no “level of scrutiny” analysis was necessary.

However, the court went on to note that the law would satisfy intermediate scrutiny. The court found the law was aimed at several important governmental objectives including protecting public safety, controlling the secondary effects of gun stores, and maintaining the character of residential neighborhoods. The court found there was a reasonable fit between these objectives and the 500-foot limit and noted that the law did not amount to a complete ban on gun dealers within the county.

Note: The court in this case previously granted another motion to dismiss but allowed the plaintiffs to amend their complaint. This time, the dismissal is with prejudice.

People v. Aguilar (Illinois): Illinois Supreme Court finds former Illinois law prohibiting virtually all public carrying unconstitutional The court found that the Second Amendment extends outside the home and that accordingly the complete prohibition on carrying outside the home under Illinois’ now-repealed law banning almost all carrying of guns outside the home was unconstitutional. The court noted that Heller and McDonald contained language strongly suggesting that the right to bear arms extends outside the home. The court also reasoned, echoing the Seventh Circuit’s decision in Moore v. Madigan, that given that the core component of the right recognized in Heller is selfdefense, it “would make little sense to restrict that right to the home, as ‘confrontations are not limited to the home.’” Thus, the court held that the Second Amendment does extend outside the home and that the law at issue is unconstitutional because it “amounts to a wholesale statutory ban on the exercise of a personal right that is specifically named in and guaranteed by the constitution.” The court did not engage in a "level of scrutiny" review. The court did note, however, that its finding that this law was unconstitutional did not mean that carrying outside the home could not be “meaningfully regulated” if the regulations were “reasonable” instead of a total ban.

In a separate part of the decision, the court rejected a Second Amendment challenge to a law prohibiting the possession of firearms by persons under 18. The court found that the Second Amendment did not protect a right of minors to own firearms because laws prohibiting such possession were longstanding under Heller.

State & Portland v. Christian (Oregon): Oregon Supreme Court upholds concealed carry permit requirement The court rejected the defendant's challenge to his conviction for violating a Portland ordinance prohibiting the public carrying of loaded weapons by persons without concealed carry permits or subject to other exceptions. The court found that although the law did burden conduct protected by the Second Amendment, the court also found that the law was subject only to intermediate scrutiny given that it was not a total ban on public carrying (Oregon is a shall-issue state). The court went on to hold that the interest in preserving public safety satisfied intermediate scrutiny.

D.

Supreme Court Action

Woollard v. Gallagher: Supreme Court denies certiorari in case challenging Maryland’s Concealed Carry Permit Law On October 15, the Supreme Court declined to review a Fourth Circuit decision earlier this year upholding Maryland’s requirement that an applicant for a permit to carry a concealed firearm in public demonstrate that he or she have a “good and substantial reason” for carrying a firearm. The Fourth Circuit upheld the law, noting that Maryland “ha[d] clearly demonstrated that the good-and-substantial-reason requirement advances the objectives of protecting public safety and preventing crime because it reduces the number of handguns carried in public. That is, limiting the public carrying of handguns protects citizens and inhibits crime[.]” The Supreme Court’s decision not to review this case—with no noted dissent—makes the Fourth Circuit’s judgment final.