RECENT DEVELOPMENTS IN SECOND AMENDMENT LITIGATION October 28, 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.
New Decisions
Silvester v. Harris, 2014 U.S. Dist. LEXIS 118284 (E.D. Cal., Aug. 22, 2014): Striking Down California’s 10-Day Waiting Period Requirement As Applied to Individuals Who Already Possess a Firearm and Pass a Background Check This case, brought by several pro-gun organizations and a few individual California citizens, challenged the state’s mandatory 10-day waiting period for all firearm purchases. Plaintiffs argued that the law violates the Second Amendment as applied to individuals who already possess a firearm, a CCW license, or Certificate of Eligibility (“COE”) and pass a post-purchase background check before the 10-day period. The court was careful to clarify that the case was not a facial challenge to the 10-day waiting period in general, nor was it a challenge to the background check requirement. In its flawed legal analysis, the court first found that the state did not meet its burden to prove that the 10-day waiting period falls within the category of “longstanding regulations” which the Heller decision identified as “presumptively lawful.” Adopting an overly-strict historical standard, the court found that the state did not show evidence of waiting periods in existence around 1791 or 1868, and that there was no evidence to suggest that waiting periods “would have been accepted and understood to be permissible under the Second Amendment” during those critical periods. Ignoring the fact that a waiting period has been on the books in California since the 1920’s, the court held that the state failed to establish that the 10-day waiting period was sufficiently “longstanding,” with California having adopted double-digit waiting periods in 1975. The court next held that the 10-day waiting period burdens plaintiffs’ Second Amendment rights because “one cannot exercise the right to keep and bear arms without actually possessing a firearm” and the 10-day waiting period “prohibits every person who purchases a firearm from taking possession of that firearm for a minimum of 10 days.” However, this
analysis completely ignored the fact that, by definition, applicants with a registered firearm on record already have access to at least one gun. In applying intermediate scrutiny to the 10-day waiting period, the court first acknowledged that “public safety and keeping firearms out of the hands of prohibited individuals are important interests.” However, the court found that the state did not prove a “reasonable fit” between these interests. The state provided three strong justifications for the 10-day waiting period: providing sufficient time to conduct background checks, giving a cooling off period to potentially distressed purchasers, and facilitating firearm trafficking investigations. Improperly applying a standard of review more akin to strict scrutiny, the court dismissed each of these justifications as “overly speculative.” The court concluded by finding that the 10-day waiting period is unconstitutional as applied to individuals who already possess a firearm and complete a background check before the 10-day period is up. The same logic applied equally, the court found, for individuals who possess CCW permits or Certificates of Eligibility and pass a background check in less than 10 days. The court issued a 180-day stay of its order to give the state sufficient time to comply. Friedman v. City of Highland Park, 2014 U.S. Dist. LEXIS 131363 (N.D. Ill. Sept. 18, 2014): Upholding Local Ordinance Prohibiting Assault Weapons and LCAMs Plaintiffs in this case, an individual Highland Park resident and an Illinois-based gun group, challenged a local ordinance prohibiting assault weapons and LCAMs (defined as magazines able to hold more than 10 rounds) on Second Amendment grounds. Applying the Seventh Circuit’s two-part analysis, the court first asked whether assault weapons and LCAMs fall within the protection of the Second Amendment. For claims involving particular classes of weapons, that question is answered by determining if the weapons at issue are “commonly used for lawful purposes.” Ultimately, the court concluded that the parties had not submitted sufficient evidence from which a conclusion could be drawn so it moved to the next level of analysis without officially resolving the “common use” issue. In determining the appropriate level of scrutiny to apply, the court noted that plaintiffs had not demonstrated a severe burden on the Second Amendment right to self-defense. In particular, the court emphasized that “[p]laintiffs have not provided a single instance of an Assault Weapon used in self-defense” and that “the Ordinance allows residents of Highland Park to keep an exceedingly large number of types of weapons (including the handguns at issue in Heller I, ‘overwhelmingly chosen by American society for that lawful purpose’) and an unlimited number of magazines, holding 10 rounds or less, for self-defense.” Given this mild burden on Second Amendment rights, the court found that it would be most appropriate to apply intermediate scrutiny. Plaintiffs admitted that the city had an important interest in protecting public safety, so the only question for the court was whether there was a reasonable fit between the ordinance and the protection of public safety. The court noted that very little separates semi-automatic
assault weapons from their already-banned fully automatic counterparts. Due to these similarities, “[a]ssault Weapons may be converted to the functional equivalent of a military weapon, and many such illegally converted weapons are recovered annually in the United States. Even without conversion, a semi-automatic AR-15 will fire at nearly the same rate of speed as a fully automatic rifle.” The court also recited evidence produced by Highland Park showing that assault weapons are ineffective in self-defense scenarios. Such weapons are powerful and relatively large compared to other firearms, “making their use in close quarters potentially difficult.” In light of this evidence, the court found that it was “clear that the features of the prohibited firearms, including LCAMs, derive from military weapons with the decidedly offensive purpose of quickly acquiring multiple targets and firing at those targets without a frequent need to reload.” The court found a “close fit” between the ordinance and the city’s “strong interest” in protecting its citizens from the potential offensive use of military-style assault weapons and LCAMs. As a result, the court held that the ordinance does not violate the Second Amendment and plaintiff’s motion for summary judgment was denied. Ezell v. City of Chicago, 2014 U.S. Dist. LEXIS 136954 (N.D. Ill., Sept 29, 2014): Mostly Rejecting Second Amendment Challenge to City of Chicago Firing Range Regulations After the Seventh Circuit concluded that a blanket ban on firing ranges within Chicago was unconstitutional, see Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011), the City enacted a comprehensive regulatory scheme encompassing licensing provisions, construction requirements, environmental regulations, and zoning restrictions for firing ranges on July 6, 2011. Plaintiffs in this case specifically challenged eleven regulations generally falling into three categories: (1) zoning restrictions; (2) construction requirements; and (3) business operations. Zoning Regulations: The plaintiffs challenged two zoning regulations, one permitting firing ranges to be located only in manufacturing districts with special use approval, and the other requiring firing ranges to be located at least 500 feet from residential zones, schools, day-care facilities, places of worship, museums, libraries, or hospitals, and 100 feet from any other firing range. The court noted that “although the zoning ordinances no longer exile firing ranges to outside of City limits, they still severely limit locations where firing ranges can be located... the City still bans firing ranges from nearly 90% of the land zoned for business, commercial, and manufacturing uses. Although the amount of acreage available, standing alone, is largely irrelevant, zoning schemes must provide a ‘reasonable opportunity’ to conduct the protected activity…So even though the zoning ordinances do not categorically ban firing ranges from the City, the restrictions taken together are still closer to a ‘serious encroachment on the right to maintain proficiency in firearm use’ than to a ‘law that merely regulate[s]’ Second Amendment activity. Accordingly, the court required the city of demonstrate a “close fit” between the zoning restrictions and the protection of public safety.
In applying this analysis, the court held that “[b]ecause the City failed to present sufficient evidence that firing ranges are uniquely suited to manufacturing districts, the current incantation of the zoning ordinance is not supported by the record and [the regulation] is unconstitutional.” However, with respect to sensitive area limitations, the court ruled differently. The court found that the regulation “places a meaningfully lesser burden on the exercise of the Plaintiffs’ rights to maintain proficiency in the use of their firearms than [the other zoning requirement], and is accordingly more easily justified…Furthermore, enforcement…does not strip the Plaintiffs of reasonable locations to operate a firing range…Therefore, the City’s regulation requiring ranges to be located at least 500 feet away from residential zoning districts, schools, day-care facilities, places of worship, premises licensed for the retail sale of liquor, children's activities facilities, libraries, museums, or hospitals is constitutional.” Construction Requirements The plaintiffs also challenged a number of Chicago’s regulations concerning construction standards for firing ranges including requirements that a range be totally enclosed by penetration-proof materials and limits on the maximum noise emanating from a range facility. In upholding these requirements, the court held that “[t]he City’s construction standards do not restrict any Second Amendment activity whatsoever. Instead, they are laws that ‘merely regulate’ the construction of firing ranges, and subsequently, create only a minor encumbrance on individual Second Amendment rights to maintain proficiency in the use of firearms…The universal purpose behind the City’s challenged construction regulations is to ensure the safety of individuals within a range facility or congregated around a facility. The record justifies the City’s means of attaining this interest.” Business Operations Finally, the Plaintiffs also opposed a number of Chicago’s ordinances regulating the day-to-day business operations of firing ranges including requiring range patrons to be 18 years or older, limiting hours of operation limit from 9am to 8pm, and requiring a range master to be present during all operating hours. The court ruled that “[a]s with the construction requirements, the City’s provisions affecting the business operations of ranges do not restrict either the Plaintiffs’ protected interest in maintaining proficiency in the use of firearms or their core right to armed self-defense” and are therefore not subject to strict scrutiny review. Applying intermediate scrutiny to these provisions, the court upheld the age requirements, range master requirement, and FOID card requirements. With respect to operating hours, the court found that “[t]he City has presented no evidence other than speculation that firing ranges uniquely create an inordinate amount of traffic, that police officers can expect to be called to a range more often than any other location, or that allowing a range to remain open after 8 p.m.
will lead to increased criminal activity.” In light of this, the court found the hour requirements to be unconstitutional. In sum, the court upheld all the construction requirements, struck down the requirement that firing ranges be located in a manufacturing district, upheld the 500-foot limit from sensitive locations, and upheld all of the operation requirements with the exception of the operating hours limitation. Both parties have appealed the case to the Seventh Circuit. Morris v. U.S. Army Corps of Engineers, 2014 U.S. Dist. LEXIS 147541 (D. Idaho Oct. 13, 2014): Striking Down Regulations Prohibiting Possession and Carrying of Firearms on Property Owned by U.S. Army Corps of Engineers Plaintiffs challenged regulations promulgated by the Army Corp of Engineers that govern the possession of firearms on property administered by the Corps. Plaintiffs argue that the regulations violate their Second Amendment right to keep and bear arms by (1) banning the possession of firearms in a tent, and (2) banning the carrying of firearms on Corps’ recreation sites. In its analysis, the court first pointed to Peruta for the notion that “sliding scale analysis is not used when instead of merely burdening the right to bear arms, the law ‘destroys the right.’” The court noted that the CCW permit regime in Peruta was found to effectively ban the public carry of firearms for law-abiding citizens, and therefore the Ninth Circuit simply declared the law’s application to be unconstitutional without the need to apply any level of constitutional review. Relying heavily on Peruta, the court found that the Second Amendment extends outside of the home and that the Corps’ regulations therefore imposed a burden on plaintiffs’ Second Amendment rights. As a total ban on the carrying of firearms on Corps property, the court held the regulations to constitute a “complete destruction” of the right of a law-abiding citizen to carry an operable handgun for self defense. The court rejected the Corps’ argument that its regulations prohibited firearms in “sensitive” places, stating that the Heller opinion discussion of “sensitive” locations was limited to facilities like “school and government buildings” rather than public parks. The court also rejected the argument that the Corps is entitled to be more restrictive with firearms because it is a governmental entity acting as a proprietor managing its own property. Finally, the court dismissed the Corps’ arguments that the firearm prohibition serves vital security and public safety interests by keeping firearms away from “critical infrastructure” and high-density areas for public use where disputes are common based on overconsumption of alcohol, loud music, and close proximity of park guest. The court found that Peruta prevented it from weighing such safety considerations in situations where a regulation completely prohibits firearms in public.
The court was careful to point out that the Corps is within its rights to regulate the carrying of firearms on its property, but that a complete prohibition was not an option. The regulations at issue are no longer valid and enforceable in Idaho because they are inconsistent with the Second Amendment.