Second Amendment

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.

Harris v. Silvester: Amicus Brief Defending California’s Mandatory 10-Day Waiting Period for Firearm Purchases

Posted on Wednesday, April 29th, 2015

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Case Information: Harris v. Silvester,  No. 14-16840 (9th Cir., Amicus Brief Filed Apr. 1, 2015)

At Issue: This case presents an as-applied challenge to California’s 10-day waiting period for firearm purchases for individuals that already possess a firearm and that pass a background check before the 10-day period is over. The district court ruled that, as to these individuals, California’s law violates the Second Amendment. The state has appealed the case to the Ninth Circuit.

The Law Center’s Brief: Our amicus brief argues that the district court erred by applying an overly-strict form of review to California’s law, which serves several important interests, all related to protecting public safety. The law provides an important cooling down period, allows more time for investigation of potential illegal straw purchases, and does not violate the Second Amendment, even with respect to individuals who already possess a firearm. The brief will also argue that the law is “longstanding” in California—dating back to the 1920’s—and is therefore “presumptively valid” under established Second Amendment jurisprudence.

Wal-Mart v. Trinity Wall Street: Amicus Brief in Support of Shareholder Proposal Requiring Wal-Mart to Consider the Public Safety Implications of Selling Assault Rifles

Posted on Wednesday, April 29th, 2015

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Case Information: Wal-Mart Stores, Inc. v. Trinity Wall Street, No. 14-4764 (3d Cir. Filed Feb. 11, 2015)

At Issue: Wal-Mart, the nation’s largest retailer, sells AR-15s and other similar assault rifles, which come equipped with high capacity magazines. The Trinity shareholder proposal at issue in this case would obligate the Wal-Mart Board to oversee the creation and implementation of standards for when to sell products raising public safety and other specified concerns. The proposal was motivated in part by the tragic shooting at Newtown and Trinity’s resultant desire to see Wal-Mart exercise more oversight of products with special business risks, including assault rifles and high-capacity magazines. While the resolution would not ban the sale of any product, it would require Wal-Mart to at least consider the implications of selling assault rifles equipped with high-capacity magazines. The district court ruled that the proposal could not be excluded from proxy materials sent by Wal-Mart to its shareholders for their consideration. Wal-Mart appealed this decision to the Third Circuit.

The Law Center’s Brief: The amicus brief supports Trinity by arguing that the district court’s opinion is consistent with SEC rules and guidance regarding the submission of shareholder proposals, and the District Court properly concluded that the Trinity proposal involves a significant policy issue appropriate for shareholder consideration. The brief emphasizes that, among the hundreds of thousands of items Wal-Mart sells, assault rifles and high-capacity magazines stand apart because of their capacity to kill large numbers of people in a very short period of time. On average, shooters who use assault weapons or large capacity magazines in mass shootings shoot 151% more people and kill 63% more people than those who do not.

Kolbe v. O’Malley: Amicus Brief in Support of Maryland Law Prohibiting Assault Weapons and Large Capacity Ammunition Magazines

Posted on Wednesday, April 29th, 2015

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Case Information: Kolbe, et al. v. O’Malley, et al., No. 14-1945 (4th Cir., Amicus Brief Filed Jan. 7, 2015)

At issue: This case is a challenge to Maryland’s Firearm Safety Act of 2013, passed in the wake of the tragedy at Sandy Hook Elementary School, which, among other things, prohibits assault weapons and large capacity ammunition magazines. The law was upheld by the district court and plaintiffs have appealed to the Fourth Circuit.

The Law Center’s Brief: Our amicus brief, filed along with Marylanders to Prevent Gun Violence, defends Maryland’s law by arguing that assault weapons and large capacity ammunition magazines are military-style weapons, ill-suited to self-defense purposes, that fall outside of the scope of the Second Amendment. The brief makes the argument that, even if these weapons are protected by the Second Amendment, the law is constitutional because it is reasonably related to the important government interest of protecting citizens and law enforcement officers from gun violence.

Heller v. District of Columbia (“Heller III”): Amicus Brief in Support of Washington, D.C. Firearm Registration Laws

Posted on Wednesday, April 29th, 2015

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Case Information: Heller v. District of Columbia (“Heller III”), No. 14-7071 (D.C. Cir., Amicus Brief Filed Dec. 12, 2014)

At Issue: 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 challenged 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 brushed aside the argument that the registration system was invalid because it would be circumvented by criminals and 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 decision has been appealed to the D.C. Circuit.

The Law Center’s Brief: The Law Center joined onto a brief with a wide variety of other gun violence prevention groups, including the Brady Center and the Violence Policy Center, arguing that the District’s registration requirements are completely compatible with the Second Amendment as interpreted by the Supreme Court’s Heller decision and subsequent case law. These requirements do not place any burden on self-defense and ample evidence exists to demonstrate their role in reducing gun violence and protecting public safety.

Friedman v. City of Highland Park: Amicus Brief in Support of Local Ordinance Banning Assault Weapons and Large Capacity Magazines

Posted on Wednesday, April 29th, 2015

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Case Information: Friedman, et al. v. City of Highland Park, et al., No. 14-3091 (7th Cir. Brief Filed Dec. 10, 2014)

At Issue: Gun lobby plaintiffs brought this challenge to an ordinance passed by the City of Highland Park, Illinois in the wake of the tragedy at Sandy Hook Elementary School in Newtown, which prohibits the possession, sale, or manufacture of assault weapons and large capacity magazines (defined as magazines able to hold more than 10 rounds of ammunition). The district court upheld the ordinance, finding it to have a “close fit” with the “stated objective of providing for the protection and safety of its inhabitants.” Plaintiffs appealed the decision to the Seventh Circuit.

The Law Center’s Brief: Our amicus brief, joined by the City of Chicago and the Cook County State’s Attorney, argues that the Second Amendment, as interpreted by the Supreme Court and other courts, does not protect a right to own weapons that are designed for a battlefield and are unsuited for lawful self-defense in the home. The brief notes that every court to have considered challenges to laws banning assault weapons or large capacity magazines since the Supreme Court’s decisions in Heller and McDonald has upheld those laws. The brief argues in the alternative that, even if the Second Amendment does protect these dangerous weapons, their regulation is still constitutional under intermediate review, which is the only appropriate level of judicial review in this context and simply requires that a law be “reasonably related” to an “important” government interest. There is no question that the challenged law passes this test.

Post-Heller Litigation Summary

Posted on Wednesday, April 1st, 2015

Updated April 1, 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 March 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 October 2014 Recent Developments In Second Amendment Litigation or read it below.