Second Amendment

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

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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

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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

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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

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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

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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

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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

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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.

Supreme Court Leaves in Place New Jersey Law Limiting Guns in Public Places

Posted on Monday, May 5th, 2014

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The U.S. Supreme Court today 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 leaves 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 spaces.

The question of whether the Second Amendment applies outside of the home is a major issue across the nation right now.  Several states, including New Jersey, New York, and California, give law enforcement the discretion to decide whether a person has a legitimate need to carry a concealed weapon in public places. Strong concealed weapons permitting systems serve to improve public safety by helping to keep guns out of public places.

Of the five U.S. Courts of Appeals that have heard Second Amendment challenges to these kinds of laws, four have found them to be constitutional.  Only recently did a three-judge panel of the Ninth Circuit unexpectedly break with the other courts in finding San Diego’s permitting system to violate the Second Amendment – a radical decision that has the potential to be overturned if the Ninth Circuit decides to rehear the case with a full panel of judges.

The Supreme Court’s decision today is part of a larger trend in which the Court has repeatedly refused to hear Second Amendment challenges to common sense gun laws.  Since the landmark Supreme Court decisions in Heller and McDonald, the Court has denied review in over 60 Second Amendment challenges to our nation’s gun laws.  As a result, the Court has refused to disturb the large number of federal and state court decisions upholding strong gun regulations.

In rejecting the gun lobby’s request to hear the Drake case today, the Supreme Court has left this issue in the hands of the lower courts, the vast majority of which have approved laws, like those in New Jersey, which serve to protect citizens from a flood of dangerous firearms in public places.

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 concealed weapon permitting laws nationwide.

Ninth Circuit Upholds San Francisco’s Safe Storage & Ammunition Laws

Posted on Tuesday, March 25th, 2014

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Today a three judge panel of the Ninth Circuit Court of Appeals unanimously upheld the City of San Francisco’s ordinances requiring the safe storage of handguns and banning the sale of hollow-point ammunition. San Francisco’s safe storage law requires handguns to be either stored in a locked container or secured with a trigger lock when they are not carried by the owner of the handgun. San Francisco’s ammunition law bans the sale of hollow-point ammunition, which is a particularly deadly form of ammunition that expands or fragments upon impact–causing massive, and irreparable damage to a person’s body.

The court’s analysis followed the pattern most courts use in addressing Second Amendment challenges: first looking at whether the challenged law burdens conduct protected by the Second Amendment, and second, if it does burden such conduct, whether the law’s burden on Second Amendment rights is outweighed by its public safety benefits.

With respect to the safe storage law, although the court found that the law did place some burden on Second Amendment rights, it found that the burden was a small one since the ordinance allows the carrying of unlocked firearms.  The court also noted that modern gun safes can be quickly accessed and modern trigger locks can be quickly disabled in the event of an emergency. The court went on to conclude the law was constitutional given the strong evidence presented by the City of a link between unlocked handguns and gun deaths.  Specifically the court noted:

The record contains ample evidence that storing handguns in a locked container reduces the risk of both accidental and intentional handgun-related deaths, including suicide. Based on the evidence that locking firearms increases safety in a number of different respects, San Francisco has drawn a reasonable inference that mandating that guns be kept locked when not being carried will increase public safety and reduce firearm casualties. This evidence supports San Francisco’s position that [the safe storage ordinance] is substantially related to its objective to reduce the risk of firearm injury and death in the home.

The court reached similar conclusions about the ammunition law. Although the court found that the law burdened conduct protected by the Second Amendment, the court also found the law was simply a regulation on the manner in which someone can exercise their Second Amendment rights.  Indeed, the court noted that the plaintiffs had produced no evidence that ordinary ammunition is ineffective for self-defense. Given the dangers associated with hollow-point ammunition, the court had no trouble finding that banning it was also substantially related to San Francisco’s interest in public safety and upholding the law.

This decision is consistent with the vast majority of other courts which have upheld reasonable gun laws and rejected Second Amendment challenges by the gun lobby. The Law Center was proud to support the city of San Francisco in the process of drafting these important regulations and have supported the city since as it defends their laws from the gun lobby’s frivolous law suits . The Law Center filed an amicus brief in support of the city of San Francisco last year in this case.

For more information, check out our policy pages on safe storage laws and ammunition regulation or read about other recent gun violence prevention success stories.

United States Supreme Court Refuses to Block Sunnyvale, California’s Measure C Magazine Capacity Limit

Posted on Thursday, March 13th, 2014

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Last year, the voters of Sunnyvale, California decided to do something about gun violence in their community by voting overwhelmingly for Measure C, a ballot initiative that enacted several ordinances strengthening the City’s gun laws. Of course, the gun lobby responded to Measure C with its usual bullying tactics—filing two lawsuits in a desperate attempt to stop parts of Measure C from going into effect.

Fortunately, the Law Center was there to help, and secured the prestigious law firm of Farella Braun + Martel LLP to defend the city on a pro bono basis. Since, Sunnyvale’s new law has been consistently upheld despite the gun lobby’s efforts, as a state court denied an emergency motion by the plaintiffs in that case to stop Measure C’s ammunition record-keeping provision from going into effect.

Today, Sunnyvale’s new law was upheld again, as U.S. Supreme Court Justice Anthony Kennedy refused an emergency request by the plaintiffs to stop Measure C’s ban on the possession of large capacity ammunition magazines from going into effect. The plaintiffs were forced to seek “emergency” relief from Justice Kennedy after a federal district court last week denied their motion for a preliminary injunction to stop the law from taking effect, and the Ninth Circuit Court of Appeals similarly refused to block the law. 

These lethal magazines allow a shooter to fire dozens of rounds—and kill countless people—without pausing to reload, and because of this, they have been consistently used in mass shootings, including in the Sandy Hook Elementary School shooting.  In this lawsuit, the plaintiffs are making the radical claim that the Second Amendment completely prohibits communities from doing anything to stop the spread of these deadly magazines.

Fortunately, the district court largely rejected those arguments, and Justice Kennedy—widely considered the “swing vote” in controversial Supreme Court cases—declined to disturb that ruling at this stage. While the district court found that the law did place a burden on Second Amendment rights, the court found that burden was “light” because “[m]agazines having a capacity to accept more than ten rounds are hardly crucial for citizens to exercise their right to bear arms.”  Indeed, the court went on to observe that the measure left open “countless other handgun and magazine options” for gun users.  READ MORE »