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 Decision Upholding New Jersey’s Limits on Public Concealed Carry In May, the U.S. Supreme Court 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 Supreme Court decision striking down Washington, D.C.’s handgun ban. After Heller, the D.C. Council amended the District’s gun laws in order to create a constitutionally compliant scheme for regulating firearms, which plaintiffs immediately challenged as violating the Second Amendment. Although the D.C. Circuit Court upheld most of this amended scheme in 2011, including the District’s ban on assault weapons and large capacity ammunition magazines, it remanded the part of the case
dealing with firearm registration requirements 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 In June, Chief Judge Marcia Krieger of the U.S. District Court of Colorado ruled that two Colorado laws 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.” In 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. In the words of the court, “[n]o evidence presented here suggests that the general ability of a person to defend him or herself is seriously diminished if magazines are limited to 15 rounds.” 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 requirement that background checks be conducted on all private firearm sales. Rejecting 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 Prohibition on the Carrying of Handguns in Public This decision found Washington, D.C.’s prohibition on the carrying of handguns in public to violate the Second Amendment. The court’s opinion, issued by New York District Court Judge Fredrick J. Scullin, Jr., stated 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.” In finding that the Second Amendment applies outside of the home, Judge Scullin noted that the Second Amendment protects not just a right to “keep” arms but also a right to “bear” them. The judge argued that limiting the term “bear” to apply only within the home would strain its definition. He also pointed to the supposed “historical understanding” of the Second Amendment as conferring a general right to carry a common weapon outside the home for selfdefense. After identifying a right to carry a firearm outside of the home for self-defense purposes, the court held that the District’s ban on public carry was unconstitutional under any level of judicial scrutiny. The court also enjoined the District from prohibiting individuals from carrying handguns in public based solely on the fact that they are not residents of the District. However, Judge Scullin was careful to explain that his ruling “does not mean that the government cannot place some reasonable restrictions on carrying of handguns,” including bans on guns in sensitive places, prohibitions for convicted felons, and otherwise “limiting the right to carry a gun to responsible persons.” The judge noted that some states require concealed carry applicants to establish competency in handling firearms and some allow private businesses and institutions to ban guns from their premises.