RECENT DEVELOPMENTS IN SECOND AMENDMENT LITIGATION August 4, 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 the 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 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.
U.S. Supreme Court Developments
Drake v. Jerejian (May 5, 2014): Supreme Court Leaves in Place New Jersey Law Limiting the Concealed Carry of Guns in Public The U.S. Supreme Court in May refused to hear a case that challenged an important gun safety law in New Jersey which requires applicants for a concealed weapon permit show a “justifiable need” before they may carry a firearm in public. By not hearing Drake v. Jerejian, the Supreme Court left in place a decision by the U.S. Court of Appeals for the Third Circuit finding New Jersey’s concealed weapons permitting system to be constitutional and an important part of protecting citizens from dangerous firearms in public places. The Supreme Court’s decision is part of a larger trend in which the Court has repeatedly refused to disturb lower court decisions upholding our nation’s gun laws. Since Heller, the Court has uniformly denied review in over 60 Second Amendment cases. For more information, see our discussion of the Supreme Court’s refusal to disturb lower court victories. C.
New Decisions
Heller v. District of Columbia (“Heller II”) (D.D.C., May 14, 2014): District Court Upholds All Aspects of D.C. Firearms Registration Law This case was brought in the aftermath of the landmark Heller decision in which the Supreme Court struck down Washington, D.C.’s handgun ban. After Heller, the D.C. Council enacted the Firearms Registration Amendment Act (FRA), which amended what remained of the District’s gun laws in order to create a new and constitutionally compliant scheme for regulating firearms. Plaintiffs immediately challenged this new system as violating the Second Amendment. Although the D.C. Circuit Court upheld most aspects of the FRA in 2011, including the District’s ban on assault weapons, large capacity ammunition magazines, and the
registration requirement as it applied specifically to handguns, it remanded the case to the district court in order to supplement the factual record. In a lengthy and well-reasoned decision, the U.S. District Court for the District of Columbia upheld every aspect of D.C.’s comprehensive firearms registration program. Applying intermediate scrutiny, the court found that the challenged laws, which require residents to register all firearms with local authorities, were sufficiently related to the District’s goals of ensuring public safety and protecting District police. The court noted that the testimony of four expert witnesses for the District provided enough evidence showing the registration system to be an important law enforcement tool that would save lives by preventing criminals from obtaining firearms. The court brushed aside the gun lobby’s argument that the registration system was invalid because it would be circumvented by criminals. Stating that the argument made “little sense” and would “invalidate any and all gun laws,” the court emphasized that “[a]lthough the various registration requirements at issue will not prevent all criminals from obtaining firearms, it surely will prevent some from doing so. That is enough.” Colorado Outfitters v. Hickenlooper (Dist. Colo. June 26, 2014.): Upholding Colorado's LCAM Ban and Background Checks for All Private Firearm Sales Chief Judge Marcia Krieger of the U.S. District Court of Colorado ruled that two Colorado laws recently enacted to help reduce gun violence do not violate the Second Amendment. Plaintiffs in the case, Colorado Outfitters v. Hickenlooper, challenged Colorado's ban on the possession of large capacity ammunition magazines (“LCAMs”) and requirement that background checks must be conducted on all private firearm sales. First addressing the ban on LCAMs (defined as magazines capable of capable of holding more than 15 rounds), Chief Judge Krieger noted that the burden placed on the Second Amendment right is “not severe” as the law “does not ban any firearm nor does it render any firearm useless.” Upholding the statute under intermediate scrutiny review (which requires a law to be reasonably related to an important government interest), the court rejected plaintiffs’ assertions that large capacity magazines are necessary for self-defense purposes, pointing to an almost complete lack of instances where more than 15 rounds were necessary in a self-defense situation. The court also highlighted persuasive evidence presented by the state showing that LCAMs are used in a high percentage of gun crimes, including attacks on police officers and mass shootings. As a result, the court easily found that Colorado’s LCAM ban is reasonably related to the important government interest of protecting public safety. The court then considered Colorado’s new requirement that background checks be conducted on all private firearm sales. Casting aside plaintiffs’ argument that this requirement was too difficult to comply with, the court noted that “there are more than 600 firearms dealers in Colorado that are actively performing private checks, and…it takes an average of less than fifteen minutes for a check to be processed.” Again, the court found that the law did not place
a severe burden on the Second Amendment and applied intermediate scrutiny as the proper standard of review. The court held that the background check requirement was reasonably related to both the reduction of crime and the protection of public safety, given that “almost 40% of gun purchases are made through private sales, in person or over the Internet; 62% of private sellers on the Internet agree to sell to buyers who are known not to be able to pass a background check; and 80% of criminals who use guns in crime acquired one through a private sale.” Palmer v. District of Columbia, No. 09-1482 (D.D.C. July 26, 2014): Striking down Washington, D.C.’s Absolute Prohibition on the Carrying of Handguns in Public This decision found Washington, D.C.’s policy of requiring permits to carry handguns in public, but then refusing to issue such permits, to violate the Second Amendment. The court’s opinion, issued by New York District Court Judge Fredrick J. Scullin, Jr., found that while neither Heller nor McDonald expressly addressed whether the Second Amendment applies outside of the home, “at the very least ‘both opinions point in a general direction.’” (quoting Ezell v. City of Chicago, 651 F.3d 684, 700 (7th Cir. 2011)). The court argued that the Second Amendment protects not just a right to “keep” arms but also a right to “bear” them. In the words of Judge Scullin, “According to the Heller majority, the natural meaning of ‘bear arms’ was the one that Justice Ginsburg provided in her dissent in Muscarell v. United States, 524 U.S. 125 (1998), that is ‘wear, bear, or carry…upon the person or in their clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person.” Judge Scullin argued that limiting the term “bear” to mean carrying only within the home would strain its definition and would also divorce the Second Amendment from self-defense, which the judge reasoned was at heart of the Heller and McDonald decisions, since a person may face threats outside the home as well as inside. In addition to this textual argument, the court also pointed to the historical understanding of the Second Amendment right, nothing that the Ninth Circuit’s Peruta majority, after an exhaustive historical analysis, “found support for the proposition that the Second Amendment [right]…means nothing if not the general right to carry a common weapon outside the home for self-defense.” Judge Scullin ended his analysis by noting that “this conclusion is not surprising in light of the fact that other circuits have reached the same result. See e.g. Moore v. Madigan, 702 F.3d 933, 936 ("A right to bear arms thus implies a right to carry a loaded gun outside the home."). After finding a right to carry a firearm outside of the home for self-defense purposes, the court easily held that the District’s complete ban on public carry violated this right. “In light of Heller, McDonald, and their progeny, there is no longer any basis on which this Court can conclude that the District of Columbia’s total ban on the public carrying of ready-to-use handguns outside the home is constitutional under any level of scrutiny.” Finally, without any analysis, the court also prohibited the District from completely banning the carrying of handguns in
public for otherwise qualified non-residents based solely on the fact that they are not residents of the District.