Second Amendment

Bauer v. Harris: Defending $19 Fee Imposed on Firearm Sales in California

Posted on Thursday, October 22nd, 2015

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Case Information: Bauer v. Harris, No. 15-15428 (9th Cir. Brief Filed Oct. 22, 2015)

At Issue: This case involves a Second Amendment challenge to the use of the $19 Dealer Record of Sale (“DROS”) fee — imposed by the State of California on the sale of all firearms — to fund the Armed Prohibited Persons System (APPS), which is used to disarm individuals who have previously purchased a firearm, but who have subsequently become prohibited from firearm possession because of a criminal conviction or other disqualifying event. The district court for the Eastern District of California upheld the DROS fee as a “presumptively lawful” condition placed on the commercial sale of firearms. The case in now on appeal before the Ninth Circuit.

The Law Center’s Brief:  The brief argues that the district court correctly determined that the use of the DROS fee to fund APPS does not violate the Second Amendment as it is a “presumptively lawful” condition on the commercial sale of firearms. Moreover, even if this use of the DROS fee were to burden Second Amendment rights, it is valid because it is substantially related to the important government interest of reducing gun crime and violence. Finally, the brief explains the important role played by the DROS fee and the APPS program in addressing gun violence and the unique success that California has had in reducing gun violence through comprehensive firearms regulation.

Pena v. Lindley: Amicus Brief Defending California’s Unsafe Handgun Act

Posted on Monday, September 28th, 2015

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Case InformationPena v. Lindley,  No. 15-15449 (9th Cir. Brief Filed Sept. 28, 2015)

At Issue: This case presents a Second Amendment challenge to the California Unsafe Handgun Act (“UHA”), which requires that all handguns must meet certain safety requirements before they may be sold within the State. The district court from the Eastern District of California rejected this challenge, noting that the UHA is a regulation on the commercial sale of arms and is therefore a “presumptively lawful” regulation falling outside the scope of the Second Amendment. The case is now on appeal before the Ninth Circuit.

The Law Center’s Brief: The Law Center’s brief addresses the importance of the Unsafe Handgun Act in keeping cheap and poorly made handguns off of the streets in California. The brief argues that the district court correctly concluded that the UHA law falls outside the scope of the Second Amendment, as it merely places a condition on the commercial sale of handguns and does not act as a prohibition. In the alternative, even if the UHA does burden conduct protected by the Second Amendment, it easily passes constitutional review under intermediate scrutiny, which is the appropriate level of review in this context, because of the minimal burden that the UHA imposes on the right to possess a firearm in the home for self-defense.

Wrenn v. District of Columbia: Joining with the Brady Center to Defend the District’s Concealed Carry Permitting System

Posted on Thursday, September 3rd, 2015

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Case Information: Wrenn v. District of Columbia, No. 15-7057 (D.C. Cir. Brief Filed Sept. 3, 2015)

At Issue: This cases challenges the constitutionality of the District’s regulations regarding the issuance of concealed carry permits. Similar to California law, the District requires that a CCW applicant show a specific need for a permit and a general self-defense interest is not enough to meet this burden. These “may-issue” systems are in place in several states across the country and are associated with a reduction in crime, including aggravated assault. However, the district court found that these laws violate the Second Amendment and the case is now on appeal with the D.C. Circuit.

Our Amicus Brief: The Law Center joined an amicus brief coordinated by the Brady Center that defends the constitutionality of the District’s concealed carry regime and argues that this regime does not violate the Second Amendment. The brief also focuses on the relevant evidence provided by social science research and the perspective of law enforcement with respect to the regulation of concealed carry in public places. The brief argues that there is a strong policy justification for a concealed carry permitting regime that requires applicants to demonstrate an elevated level of need before a permit may be issued.

Tyler v. Hillsdale County Sheriff’s Department: Amicus Brief Arguing Against the Use of Strict Scrutiny in Second Amendment Cases

Posted on Tuesday, September 1st, 2015

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Case Information: Tyler v. Hillsdale County Sheriff’s Dep’t, No. 13-1876 (6th Cir. Brief Filed Aug. 19, 2015)

At issue: This case presents an as-applied challenge to the federal statute that prohibits firearm possession for individuals who have been involuntary committed to a mental institution. The plaintiff, Clifford Tyler, had been involuntarily committed to a mental institution in the 1980s, but had a clean record and bill of health since that time and argued that the statute, as applied to him, violated the Second Amendment. The Sixth Circuit agreed with this argument and, in doing so, became the first federal court of appeals to generally endorse strict scrutiny as the appropriate level of review for Second Amendment challenges. This case has important implications for how courts around the country analyze laws designed to reduce gun crime and violence.

The Law Center’s Brief: Our brief argues that the Sixth Circuit was wrong in its general conclusion that strict scrutiny should be the default level of review for Second Amendment cases. As the harshest level of review available, strict scrutiny is inappropriate in the context of firearms regulations that have been proven to save lives. If any heightened scrutiny is in fact mandated by the Second Amendment, intermediate scrutiny is the more appropriate level of review. Our brief argues that it is not true that laws that burden fundamental rights automatically trigger strict scrutiny and that several of the factors relied on in applying strict scrutiny in other contexts are not present in the Second Amendment arena. Unlike other constitutional rights, the exercise of Second Amendment rights inherently increase the risk of injury and death to others. Moreover, the Heller court itself implicitly rejected strict scrutiny when it classified several categories of laws, such as felon-in-possession laws, as “presumptively valid.”

Post-Heller Litigation Summary

Posted on Monday, August 31st, 2015

Updated August 31, 2015

The Law Center’s Post-Heller Litigation Summary surveys the landscape of 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.

Download our August 2015 Post-Heller Litigation Summary or read it below.

The Law Center’s Recent Developments in Second Amendment Litigation, provides updates on the latest court decisions and lawsuits related to the Second Amendment. Download our August, 2015 Recent Developments In Second Amendment Litigation document, or read it below.

Waiting Periods in West Virginia

Posted on Monday, August 31st, 2015

West Virginia has no law imposing a waiting period prior to the purchase of a firearm.

See our Waiting Periods policy summary for a comprehensive discussion of this issue.

Protecting Strong Gun Laws: The Supreme Court Leaves Lower Court Victories Untouched

Posted on Wednesday, August 26th, 2015

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In the last seven years, the U.S. Supreme Court has rejected more than sixty cases seeking to expand the very limited right defined in the unprecedented Second Amendment case, District of Columbia v. Heller. By repeatedly declining to review lower court decisions upholding federal, state, and local gun laws, the Supreme Court has maintained important limitations on the Second Amendment and has reconfirmed that the CERTGraphicAmendment is not an obstacle to smart gun laws that keep our communities safe from gun violence.

Since the Court’s decision in the Heller case 2008, lower courts across the country have been inundated with costly and time-consuming challenges to state and local gun laws.  However, lower courts have consistently upheld these laws, noting that many of these laws have been successful at protecting people from gun violence and keeping guns out of the hands of criminals while still allowing law-abiding citizens to keep guns in their homes for self defense.  Since 2008, there have been over 1,000 Second Amendment cases challenging gun laws nationwide, with an overwhelming majority—94%—of the lower court decisions upholding those laws.

Many of these Second Amendment challenges to gun laws make their way to the Supreme Court.  However, the Court has refused to hear these cases,1 leaving lower court decisions upholding the laws intact and keeping strong gun laws on the books.  For example, the Supreme Court has refused to hear cases that:

  1. In 2010, the Court decided McDonald v. City of Chicago, which held that the right recognized in Heller extends to state and local governments.  That case involved a Chicago law nearly identical to the one struck down in Heller and did not expand the substantive scope of the Second Amendment. []

Mance v. Lynch: Amicus Brief Defending Federal In-State FFL Requirement for Handgun Sales

Posted on Monday, July 20th, 2015

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Case Information: Mance v. Lynch, No. 15-10311 (5th Cir. Brief Filed July 20, 2015)

At Issue: Plaintiffs in this case argue that the federal laws requiring out-of-state handgun purchases to be completed through an in-state federal firearms licensee (“FFL”) violate the Second Amendment. In other words, the challenged laws require a person wishing to buy a handgun in another state to have the purchase completed by an FFL that operates in their state of residence. Plaintiffs in this case are residents of the District of Columbia and wanted to purchase a firearm in Texas, but did not do so because of the extra costs associated with the in-state FFL requirement. The district court for the Northern District of Texas found that this requirement unduly restricts access to firearm markets and therefore violates the Second Amendment. The case is now on appeal before the Fifth Circuit.

The Law Center’s Brief: Our amicus brief argues that the challenged federal laws are compatible with the Second Amendment because they place such a small burden on a citizen’s ability to keep a firearm in the home for self-defense. The brief argues that laws imposing background checks and regulating large capacity ammunition magazines are “presumptively lawful” and not protected at all by the Second Amendment. Even if these regulations implicate the Second Amendment, both provisions survive constitutional scrutiny because they are reasonably related to the important governmental objective of protecting public safety and the safety of law enforcement officers.

Rocky Mountain Gun Owners v. Hickenlooper: Amicus Brief Defending Colorado Law Prohibiting Large Capacity Ammunition Magazines

Posted on Tuesday, June 16th, 2015

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Case Information: Rocky Mountain Gun Owners v. Hickenlooper, No. 2014-CA-002178, (Colo. Ct. App. Brief Filed June 16, 2015)

At Issue: In this state court case, plaintiffs are challenging the constitutionality of Colorado laws, enacted in 2013, that, among other things, generally prohibit large capacity ammunition magazines (defined as magazines which can hold more than 15 rounds). Plaintiffs argue that these laws violate the Colorado State Constitution’s right to bear arms provision, which states that “[t]he right of no person to keep and bear arms in defense of his home, person and property . . . shall be called in question.” The district court upheld the laws, finding them to be a “reasonable” exercise of the state’s police power, specifically designed to protect public safety. The case is now on appeal with the Colorado State Court of Appeals.

The Law Center’s Brief: Our brief makes the argument that large capacity ammunition magazines are not “arms,” and therefore are not protected by the right to bear arms provision contained at Article II § 13 of the Colorado Constitution. The brief argues that large capacity ammunition magazines are non-essential accessories that are not required to operate the vast majority of firearms. Moreover, these magazines are disproportionately used in mass shootings and attacks on police officers and their use is associated with a large increase in the number of people injured and killed in a shooting.

Colorado Outfitters v. Hickenlooper: Amicus Brief Defending Colorado Laws Requiring Universal Background Checks and Prohibiting Large Capacity Ammunition Magazines

Posted on Wednesday, April 29th, 2015

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Case Information: Colorado Outfitters, et al. v. Hickenlooper, et al., No. 14-1290 (10th Cir. Brief Filed Apr. 29, 2015)

At Issue: In this case, plaintiffs are challenging the constitutionality of Colorado laws, enacted in 2013, that require background checks for private firearm sales and transfers and that prohibit large capacity ammunition magazines (defined as magazines which can hold more than 15 rounds). These laws were upheld in their entirety by the district court and plaintiffs have appealed the case to the Tenth Circuit.

The Law Center’s Brief: Our amicus brief argues that these laws are compatible with the Second Amendment because they place such a small burden on a citizen’s ability to keep a firearm in the home for self-defense. The brief argues that laws imposing background checks and regulating large capacity ammunition magazines are “presumptively lawful” and not protected at all by the Second Amendment. Even if these regulations implicate the Second Amendment, both provisions survive constitutional scrutiny because they are reasonably related to the important governmental objective of protecting public safety and the safety of law enforcement officers.