Second Amendment

Post-Heller Litigation Summary

Posted on Friday, November 21st, 2014

Updated November 21, 2014

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 November 2014 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 October 2014 Recent Developments In Second Amendment Litigation or read it below.

With Increasing Number of Court Victories, 2014 Shaping Into Big Year for Gun Sense in the Courts

Posted on Monday, September 29th, 2014

assault-weapon

Earlier this month, U.S. District Court Judge John Darrah handed the gun sense movement yet another legal victory by upholding a local ordinance that prohibits military-style assault weapons and large capacity ammunition magazines (“LCMs”) in the city of Highland Park, Illinois. The decision is the most recent in a growing string of cases unanimously finding that prohibitions on assault weapons and LCMs do not infringe on the Second Amendment1.

Plaintiffs in the case, Friedman v. City of Highland Park, tried unsuccessfully to argue that the ordinance violated Second Amendment rights, but after carefully weighing the evidence from both sides, Judge Darrah firmly disagreed. “The record is clear,” he wrote, “that the features of the prohibited firearms, including LCMs, derive from military weapons with a decidedly offensive purpose of quickly acquiring multiple targets and firing at those targets without a frequent need to reload.” In light of their deadly nature, the judge concluded that prohibiting assault weapons and LCMs is a reasonable way to protect public safety without unconstitutionally burdening self-defense rights.

READ MORE »

  1. See, Heller v. District of Columbia, 670 F. 3d 1244, 1260-64 (D.C. Cir. 2011) (upholding the District of Columbia’s ban on assault weapons and large capacity ammunition magazines after applying intermediate scrutiny); N.Y. State Rifle & Pistol Ass’n v. Cuomo, 2013 U.S. Dist. LEXIS 182307 (W.D.N.Y. Dec. 31, 2013) (upholding New York’s assault weapon and large capacity ammunition magazine ban under the same standard); Kampfer v. Cuomo, 2014 U.S. Dist. LEXIS 1479 (N.D.N.Y Jan. 7, 2014) (upholding New York’s assault weapons ban by finding it does not substantially burden Second Amendment rights); Colo. Outfitters Ass’n v. Hickenlooper, 2014 U.S. Dist. LEXIS 87021 (D. Colo. June 26, 2014) (upholding Colorado’s ban on large capacity ammunition magazines); Kolbe v. O’Malley, 2014 U.S. Dist. LEXIS 110976 (D. Md. Aug. 12, 2014) (upholding Maryland’s ban on assault weapons and large capacity ammunition magazines). []

District Court Strikes Down California’s 10-Day Waiting Period Requirement for Individuals Who Already Own a Firearm and Pass a Background Check

Posted on Thursday, August 28th, 2014

mentalhealth-cropped

In a disappointing decision, a district court judge ruled this week that California’s 10-day waiting period requirement for firearm purchases violates the Second Amendment, but only with respect to individuals who already own a gun and who also pass a background check before the 10-day period expires.  The case, Silvester v. Harris, was brought by several pro-gun organizations and individual California citizens who argued that the waiting period was unconstitutional as applied to them.  The court was careful to clarify that this was not a challenge to the 10-day waiting period in general, or to California’s background check requirement for all gun purchases.

In its decision, 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 and the 10-day waiting period with respect to individuals who already possess a firearm and pass a background check within 10 days.  The state provided three primary justifications for the waiting period requirement:  improving background checks, providing a cooling off period to reduce impulsive gun violence, and improving gun trafficking investigations.

As to background checks, the court dismissed as “unduly speculative” the state’s argument that a 10-day waiting period allows officials to address disqualifying information that may come to their attention before the period expires.  “Although additional disqualifying information may come to [the state’s attention],” the court wrote, “that can be said of any time-frame, but it 1 day or 60 days.”  With respect to cooling off periods, the court noted that “[t]here is no evidence that a ‘cooling off period,’…prevents impulsive acts of violence by individuals who already possess a firearm.”  In reaching this conclusion, the court discounted the social science evidence presented in support of waiting periods and the state’s argument that an individual may no longer have access to a gun just because it is listed in a database.  Finally, in addressing how the 10-day period may impact gun trafficking investigations, the court admitted that “it might be easier to intercept a weapon prior to delivery” with a 10-day waiting period, but was apparently satisfied that “this only occurs in about 15% of investigations.”

In his order, the judge gave the State of California 180 days to implement procedures that would comply with the decision, including releasing purchased firearms immediately to any individual who both passes a background check and is on record as already owning a firearm.  In reaching his decision, the judge appeared to place an unduly high burden on the state to prove the waiting period’s relationship to gun violence reduction—largely ignoring or discounting evidence that the 10-day waiting period prevents impulsive acts, enhances background checks, and improves investigations into illegal gun trafficking activity.  The state is likely to appeal the decision to the Federal Court of Appeals for the Ninth Circuit, where the Law Center plans to file an amicus brief in support of the waiting period requirement.

For more on the benefit of waiting period laws, see the Law Center’s Waiting Period Policy Summary.  For more on recent amicus briefs we’ve filed in the courts in support of common sense gun regulations, see our Second Amendment Amicus Briefs section.

Teixeira v. County of Alameda: Amicus Brief in Support of Ordinance Keeping Gun Dealers Away from Schools and Sensitive Areas

Posted on Monday, August 18th, 2014

9thcourt

Case information: Teixeira, et al. v. County of Alameda, et al., No. 13-17132 (9th Cir., amicus brief filed August 15, 2014)

At Issue: This case involves a constitutional challenge to an Alameda County, California ordinance which requires—among other things—firearms dealers be located at least 500 feet away from school zones, other gun dealers, and residential areas.  Plaintiffs, three individual California residents along with various pro-firearm organizations, argue that the ordinance violates the Second Amendment by making it overly difficult to sell guns in Alameda County, despite the fact that at least twenty dealers already operate in the area.  The district court upheld the ordinance as a constitutional regulation of the commercial sale of firearms, and plaintiffs are now appealing that decision in the Ninth Circuit.

The Law Center’s Brief: Our Ninth Circuit brief, joined by Youth ALIVE!, argues that that the Alameda County ordinance does not violate the Second Amendment as it is part of a historic tradition of regulating the commercial sale of firearms, which the U.S. Supreme Court has expressly recognized as “presumptively lawful.”  Moreover, the ordinance places no burden on the Second Amendment right to possess a handgun in the home for self-defense as the ordinance in no way prohibits firearms dealers or the purchase of firearms.  Finally, the brief argues that even under intermediate scrutiny—the level of judicial review overwhelming applied to Second Amendment claims—the ordinance is valid because it is reasonably related to Alameda County’s important interest of protecting public safety.

Victory in the Courts: Maryland’s Ban on Assault Weapons and Large Capacity Ammunition Magazines Upheld

Posted on Wednesday, August 13th, 2014

OLYMPUS DIGITAL CAMERA

In a victory for gun safety, a U.S. District Court on Tuesday, August 12 upheld all aspects of Maryland’s Firearm Safety Act of 2013.  The law, enacted in the wake of the devastating shooting at Sandy Hook Elementary School, prohibits certain assault weapons and large capacity ammunition magazines (“LCAMs”).  Plaintiffs in the case, individual gun owners as well as a number of pro-gun organizations, argued unsuccessfully that the Act violates the Second Amendment.  With its decision, the District Court in Kolbe v. O’Malley joins an ever-growing number of courts that have unanimously upheld laws around the country prohibiting dangerous, military-style assault weapons and LCAMs.

In reviewing the law, the court first asked whether assault weapons and LCAMs (magazines capable of holding more than 10 rounds) fall within the scope of the Second Amendment, which does not protect “dangerous and unusual weapons,” but only those “typically possessed by law-abiding citizens for lawful purposes.”  The court noted that assault weapons “represent no more than 3% of the current civilian gun stock, and ownership of those weapons is highly concentrated in less than 1% of the U.S. population.”  Moreover, assault weapons “are used disproportionately” in both mass shootings and attacks on law enforcement officers and “cause more injuries and more fatalities when they are used.”  Given this evidence, the court expressed its “serious[] doubts that the banned assault long guns are commonly possessed for lawful purposes” and was “inclined to find” that such weapons fall outside the Second Amendment as dangerous and unusual.

A final ruling on that question was not issued, however, because the court found the entire Act to easily survive constitutional review.  In holding that the Act only minimally burdens the Second Amendment, the court pointed out that the law “does not seriously impact a person’s ability to defend himself in the home…[i]n fact, the plaintiffs can point to no instance where assault weapons or LCAMs were used or useful in an instance of self-defense in Maryland.”  The court also noted persuasive evidence showing that “assault weapons have several military-style features which make them especially dangerous to law enforcement and civilians,” and that LCAMs are used disproportionately in mass shootings and in the killing of law enforcement officers.  Given these facts, the court concluded that the Act “substantially serves the government’s interest in protecting public safety, and it does so without significantly burdening” the Second Amendment right of “law-abiding, responsible citizens to use arms in defense of hearth and home.”

This case is part of an overall trend in courts across the nation, where the vast majority of challenges to common sense gun regulations are rejected.  In over 900 decisions tracked by the Law Center, approximately 96% of Second Amendment challenges were rejected—further proof that sensible firearm regulations are totally compatible with the Second Amendment.

For more, visit our overview of Maryland’s gun laws or read about limits on assault weapons and large capacity ammunition magazines in states across the country.

Court Upholds Colorado Laws Banning Large Capacity Magazines and Requiring Background Checks for Private Gun Sales

Posted on Saturday, July 5th, 2014

Denver_State_Capitol

The U.S. District Court of Colorado ruled on Thursday, June 26th that two Colorado laws recently enacted to help reduce gun violence do not violate the Constitution.  Plaintiffs in the case, Colorado Outfitters v. Hickenlooper, challenged Colorado’s newly enacted ban on the possession of ammunition magazines that hold over 15 rounds and a requirement that background checks must be conducted on all private firearm sales.

Chief Judge Krieger, who ruled in the case, noted that the burden placed on the Second Amendment by limiting large capacity ammunition magazines is “not severe” as the law “does not ban any firearm nor does it render any firearm useless.”  The court rejected the 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 large capacity ammunition magazines 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 limit to 15 rounds of ammunition is reasonably related to the important government interest of protecting public safety.

The court also found Colorado’s new requirement to require background checks on all gun sales to be constitutional.  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.”  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.”

This case is part of an overall trend in courts across the nation where the vast majority of challenges to common sense gun regulations are rejected.  In the over 900 cases currently being tracked by the Law Center, approximately 96% of Second Amendment challenges were rejected.  This provides further proof that sensible firearm regulations are totally compatible with the Second Amendment.

For more, visit our overview of Colorado’s gun laws or read about limits on ammunition magazines nationwide and background check requirements in states across the country.

Amicus Brief in Support of Sunnyvale, California’s Ban on Large Capacity Ammunition Magazines

Posted on Tuesday, June 24th, 2014

largecapacityammo-cropped

Case information: Fyock, et al. v. City of Sunnyvale, et al., No. 13-05807 (9th Cir. amicus brief filed June 24, 2014)

At Issue:  This case challenges the constitutionality of the City of Sunnyvale’s ordinance which bans the possession of large capacity ammunition magazines (defined as magazines which can accept more than 10 rounds of ammunition).  The sale and manufacture of such magazines has been prohibited in California for many years, but their actual possession is not prohibited at the state level.  Plaintiffs, individual residents of Sunnyvale who wish to possess the prohibited magazines, argue that the ordinance violates the Second Amendment as a complete ban on an entire category of firearms.  The district court rejected this argument, noting that the ordinance prohibited only a subset of available magazines and that large capacity magazines are disproportionately used in mass shootings and attacks on law enforcement officers and are “hardly crucial” for self-defense within the home.   Plaintiffs appealed this decision to the Ninth Circuit. 

The Law Center’s Brief:  The Law Center’s Ninth Circuit brief, joined by Cleveland School Remembers, highlights three important threshold arguments for why the City of Sunnyvale’s ordinance does not implicate the Second Amendment.  First, the brief argues that large capacity ammunition magazines fall outside of the protection of the Second Amendment because they are not “arms.”  Next, the Second Amendment only protects those arms “in common use at the time” and the brief argues that large capacity magazines are not “in common use” in California, especially since their sale and manufacture has been banned for nearly two decades.  Third, based on their disproportionate use in criminal activity and lack of suitability for self-defense purposes, large capacity magazines are “dangerous and unusual” weapons which fall outside of the Second Amendment.  Finally, the brief argues that, even if the ordinance does implicate the Second Amendment, the law easily satisfies intermediate scrutiny—the level of judicial review overwhelmingly applied to Second Amendment claims—because it is reasonably related to the City of Sunnyvale’s important interest in protecting public safety and reducing crime.

Amicus Brief in Support of New York’s Ban on Assault Weapons and Large Capacity Ammunition Magazines

Posted on Sunday, June 1st, 2014

assaultweapon-cropped

Case information: New York State Rifle and Pistol Ass’n, et al. v. Cuomo, et al., No. 13-291 (2d Cir. amicus brief filed August 5, 2014)

At Issue:  This lawsuit, filed by a gun lobby group and a few individuals, challenges the New York Secure Ammunition and Firearms Enforcement (SAFE) Act, which was passed in direct response to the tragic elementary school shooting in Newtown, Connecticut.  The shooter at Newtown used an assault weapon and multiple high capacity magazines to kill 26 people, including 20 children, in just five minutes.  The SAFE Act strengthened New York’s ban on these dangerous weapons and magazines by—among other things—broadening the definition of an assault weapon to include guns with characteristics that enable the firing of hundreds of bullets per minute, aid in the commission of mass murders and assaults, or facilitate the weapon’s concealment.  This lawsuit makes the radical claim that the Second Amendment protects a “right” to own assault weapons and high capacity ammunition magazines and that New York’s laws regulating these dangerous weapons are unconstitutional.  The vast majority of these provisions were upheld by the district court, and both parties have appealed the case to the Second Circuit.

The Law Center’s Brief: Our Second Circuit brief, joined by New Yorkers Against Gun Violence, argues that the Second Amendment, as interpreted by the U.S. Supreme Court, does not protect a right to own weapons that are designed for a battlefield and have no connection to lawful self-defense in the home.  The brief emphasizes the fact that every court which has considered challenges to laws banning assault weapons or high capacity magazines since the Supreme Court’s landmark 2008 decision, District of Columbia v. Heller, has upheld those laws.  Finally, the brief argues that even if the Second Amendment does protect these dangerous weapons, their regulation is still constitutional under intermediate scrutiny—the level of review overwhelming applied to Second Amendment claims—because such regulation is reasonably related to New York’s important interest in protecting public safety and reducing crime.

Amicus Brief in Support of Connecticut’s Ban on Assault Weapons and Large Capacity Ammunition Magazines

Posted on Friday, May 30th, 2014

9thcourt

Case Information: Shew, et al. v. Malloy, et al., No. 14-319 (2d Cir. brief filed August 21, 2014)

At Issue:  This case challenges the constitutionality of Connecticut’s assault weapon and large capacity ammunition magazine ban.  This lawsuit, filed by a gun lobby group and several private individuals, challenges the Gun Violence Prevention and Children’s Safety Act (“the Act”), which was passed in direct response to the tragic elementary school shooting in Newtown, Connecticut.  The Act strengthened Connecticut’s ban on these dangerous weapons by–among other things–broadening the definition of an assault weapon to include guns with characteristics that enable the firing of hundreds of bullets per minute, aid in the commission of mass murders and assaults, or facilitate the weapon’s concealment.  The Act also banned the possession of large capacity ammunition magazines, which allow mass shooters to file dozens and dozens of bullets without pausing to reload.  The plaintiffs in this lawsuit make the radical claim that the Second Amendment protects a “right” to own assault weapons and high capacity ammunition magazines and that Connecticut’s laws regulating these dangerous weapons are unconstitutional.

The Law Center’s Brief: Our Second Circuit brief, joined by Connecticut Against Gun Violence, and Cleveland School Remembers, argues that the Second Amendment, as interpreted by the U.S. Supreme Court, does not protect a right to own weapons that are designed for a battlefield and have no connection to lawful self-defense in the home.  Every court which has considered challenges to laws banning assault weapons or high capacity magazines since the Supreme Court’s landmark 2008 decision in District of Columbia v. Heller, has upheld those laws.  Finally, the brief argues that, even if the Second Amendment does protect these dangerous weapons, their regulation is still constitutional under intermediate scrutiny—the level of review overwhelming applied to Second Amendment claims—because such regulation is reasonably related to Connecticut’s important interest in protecting public safety and reducing crime.

Big Second Amendment Victory: District Court Upholds D.C. Firearms Registration Law

Posted on Thursday, May 15th, 2014

registration-cropped

In a lengthy and well-reasoned decision released earlier today, the U.S. District Court for the District of Columbia upheld every aspect of D.C.’s comprehensive firearms registration program. 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.”

The case, known as Heller II, was brought in the aftermath of the landmark Heller decision in which the Supreme Court struck down 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. The plaintiffs, funded and represented by the gun lobby, immediately challenged this new system as violating the Second Amendment. After extensive and costly litigation, 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. The rest of the case was brought back to the District Court in order to gather more facts.

Today’s decision broadly upholds D.C.’s common sense registration provisions, including mandatory firearms safety training for registered gun owners, a limit of one pistol registration per month, and the various administrative aspects of the system, including in-person registration. The court’s decision reaffirms the notion that, after the Heller decision, legislatures still have great leeway in enacting thoughtful, rational gun laws in order to protect the public and law enforcement officers. This adds to the gun lobby’s ever-growing losing streak of expensive and wasteful Second Amendment challenges to common sense gun laws. Second Amendment challenges have been rejected in 96% of the more than 900 civil and criminal cases tracked by the Law Center across the country since the Heller decision in 2008.

For more, read our information on other cases that have addressed the Second Amendment since the pivotal 2008 Heller case or read our summary of laws that require the registration of firearms.