Recent Developments in Second Amendment Litigation February 2014

RECENT DEVELOPMENTS IN SECOND AMENDMENT LITIGATION February 7, 2014 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 Decisions

In re Wheeler, 2013 N.J. Super. LEXIS 189 (N.J. App. Div. Dec. 30, 2013): New Jersey Appellate Court Upholds “May Issue” Concealed Carry Law In this case, a New Jersey appellate court rejected a challenge to New Jersey's requirement of a "justifiable need" for the issuance of a CCW permit. The court assumed without deciding that the Second Amendment right recognized in Heller extends outside the home and concluded the justifiable need requirement was a significant burden on the right. However, the court found that intermediate scrutiny was applicable given the historic tradition of regulating the public carrying of firearms. The court then upheld the law, finding that it was reasonably related to preventing unlawful use of firearms in public. A similar result was reached by a different New Jersey Appellate Court in In re Pantanto and by the Third Circuit in, Drake v. Filko. The Pantanto case is currently pending in the New Jersey Supreme Court and the plaintiffs in Drake have recently filed a petition for certiorari in the United States Supreme Court (the case is now called Drake v. Jerejian).

Shew v. Malloy, 2014 U.S. Dist. LEXIS 11339 (D. Conn. Jan. 30, 2014): Connecticut Ban on Assault Weapons & Large Capacity Ammunition Magazines Upheld by Federal District Court This case was a challenge to a new law Connecticut passed in the wake of the Newtown shooting that strengthened its ban on the sale, possession, and manufacture of assault weapons and similarly banned large capacity ammunition magazines. The plaintiffs alleged that the law violated the Second Amendment. The court rejected all of these challenges and upheld both aspects of the law. Although the court did find that assault weapons and LCAMs were commonly used and therefore protected by the Second Amendment, the court also noted that the law left many other firearms available, and thus found it appropriate to apply intermediate

scrutiny. Applying that standard, the court upheld the law, crediting the state's experts' conclusions that the legislation would cause a reduction in shootings and finding that the law was therefore reasonably related to the state’s interest in preserving the public’s safety.

N.Y. State Rifle & Pistol Ass'n v. Cuomo, 2013 U.S. Dist. LEXIS 182307 (W.D.N.Y. Dec. 31, 2013): New York’s Assault Weapon & Large Capacity Ammunition Magazine Ban Upheld By Federal District Court In this challenge to New York’s ban on the sale, possession, or manufacture assault weapons and large capacity ammunition magazines, the court upheld the bans on assault weapons and large capacity ammunition magazines, but struck down a ban on loading more than seven rounds of ammunition into a magazine. The court assumed without deciding that assault weapons and large capacity ammunition magazines were "commonly used" enough to be protected by the Second Amendment under Heller, and found that the law’s burden on Second Amendment rights warranted intermediate scrutiny. Applying intermediate scrutiny, the court upheld the assault weapon and large capacity ammunition magazine bans. The court found that the bans were reasonably related to the state's interest in public safety given the link between these weapons and magazines and mass shootings. The court did, however, strike down New York's law requiring firearm owners to load no more than seven rounds into each magazine. The court found that the state failed to present any evidence justifying this “arbitrary” limit and found that it would have a far greater impact on legal gun owners than on criminals.

The court also struck down a few minor portions of the law as overly vague. It did struck down a provision banning semi-automatic rifles with “muzzle breaks” since the correct term is “muzzle brake.” A muzzle brake helps to prevent recoil and upward movement of the barrel of a gun during rapid fire. The court also struck down a provision prohibiting semi-automatic handguns that are “semi-automatic versions” of fully automatic firearms because it did not give sufficient notice of what specific kinds of guns were prohibited.

Kampfer v. Cuomo, 2014 U.S. Dist. LEXIS 1479 (N.D.N.Y Jan. 7, 2014): New York’s Assault Weapons Ban Upheld By Another District Court In this case, a pro se plaintiff challenged New York’s assault weapons ban (the plaintiff did not appear to challenge the magazine restrictions). The court upheld the ban, and—unlike the court in the NYSRPA case described above—found that the law did not burden Second Amendment rights at all because it left a vast number of firearms available for self-defensive

use. Because the court found that the law did not burden the Second Amendment, it did not apply heightened scrutiny to the law and upheld it.

Ill. Ass'n of Firearms Retailers v. City of Chicago, 2014 U.S. Dist. LEXIS 782 (N.D. Ill. Jan. 6, 2014): Chicago’s Ban on Firearm Transfers Struck Down By District Court In this case, the court struck down a Chicago ordinance that prohibited any transfer of firearms within its borders except through inheritance. The court found that law violated the Second Amendment. The court applied the familiar “two step” Second Amendment analysis to the claim. First, it found that the right to possess a firearm necessarily included the right to acquire a firearm and that Chicago’s ordinance, by banning any gun sales at all, was an infringement of that right. It also found that there was no historical evidence that sales bans like this were outside the scope of the Second Amendment as it was understood when it was ratified in 1791 (an inquiry required by previous Seventh Circuit decisions). Second, the court applied the same heightened scrutiny (somewhere between intermediate and strict) that the Seventh Circuit applied in Ezell and found that the ordinance did not satisfy that test. The court found that there was not a sufficient fit between the law’s stated objectives of preventing illegal gun sales and thefts and how the law operates. Specifically, the court concluded that the law burdens “law-abiding citizens” more than criminals attempting to acquire firearms. Thus, the court found the law was unconstitutional.

However, the court explicitly stated that “nothing in this opinion prevents the City from considering other regulations—short of the complete ban—on sales and transfers of firearms to minimize the access of criminals to firearms and to track the ownership of firearms” including “more targeted ordinances aimed at making gun stores more secure—for example, by requiring that stores install security systems, gun safes, or trigger locks [or] designating special zones for gun stores to limit the area that police would have to patrol to deter burglaries.”

Morris v. U.S. Army Corps of Engineers, 2014 U.S. Dist. LEXIS 3447 (D. Idaho Jan. 10, 2014): Court Strikes Down Firearm Ban on Army Corps of Engineers Administered Recreation Areas A federal district court in Idaho granted a preliminary injunction enjoining the U.S. Army Corps of Engineers from enforcing a regulation that prohibits firearms on corps administered recreational areas around corps projects (most notably, dams and related reservoir projects).

The court found that the law was a “substantial burden” on Second Amendment rights for two reasons: (1) it forbids firearms in tents where people are camping and tents used in this manner are like a home for purposes of the Second Amendment just as they are for purposes of the Fourth Amendment; and (2) the law forbids carrying firearms for self-defense, which is identified in Heller as the purpose of the Second Amendment (the court did not discuss any

distinction between the Second Amendment’s application inside and outside the home). The court noted that given this substantial burden, strict scrutiny was appropriate. However, the court held it did not need to decide that issue because—in the court’s view—the law would not even satisfy intermediate scrutiny since it is a total ban rather than a more reasonably targeted regulation.