Second Amendment

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.

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

Posted on Monday, September 29th, 2014

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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.

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  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

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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.

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

Posted on Thursday, August 21st, 2014

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Case Information: Shew, et al. v. Malloy, et al., No. 14-319 (2d Cir., Amicus 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.