Second Amendment Amicus Briefs

Case Information: Birdt v. L.A. Sheriff’s Department, Civil No. 12-55115 [DC No. CV-08377-JAK] (9^th Cir. Filed November 5, 2012)

At Issue: Challenging California’s concealed carry “good cause” provision and the authority of law enforcement to issue concealed weapons permits. This lawsuit challenges the “good cause” provision contained in California’s concealed carry statute.  California law allows an applicant for a concealed carry permit to receive a permit only if he or she has demonstrated to local law enforcement good cause to carry a concealed firearm.  Plaintiff argues that the good cause provision violates the Second Amendment to the U.S. Constitution.

Law Center’s Brief:  Our brief, filed in support of the Los Angeles Police Department and, more broadly, California’s discretionary concealed carry law, argues that California’s statutory provisions do not fall within the scope of the Second Amendment as it has been interpreted by the U.S. Supreme Court.  Moreover, even if the permitting process implicates protected Second Amendment activity, it easily survives the appropriate level of review – intermediate scrutiny – due to the obvious and substantial public safety benefits from carefully limiting the concealed carry of loaded firearms in public.

Download a PDF of the Birdt_v_L.A._Sheriff’s_Dept_Amicus_Brief.

Photograph: Thomas Barwick/Getty Images

Case Information:  Wollschlaeger v. Florida, No. 12-14009-FF (11^th Cir. Filed Nov. 5, 2012)

At Issue:  Challenging Florida’s “gag rule” on doctors that violates patients’ First Amendment right to receive lifesaving information on firearm safety.  This lawsuit challenges a Florida statute that denies doctors their right to discuss questions of firearm safety with their patients, and also denies patients their right to information and advice on firearm safety.  Plaintiffs argue the law violates the First Amendment.

Law Center’s Brief:  Our brief, filed in support of doctors and other medical professionals challenging the Florida statute, argues that the law should be struck down as a violation of medical patients’ First Amendment right to receive information from their doctors on firearm safety.

Download a PDF of the Wollschlaeger_v._Florida_Amicus_Brief.

Photograph: Chris Ochsner/AP

Case Information:  Mehl v. Blanas, No. 08-15773 (9^th Cir. Filed Nov. 16, 2012)

At Issue:  Challenging California’s concealed carry “good cause” provision.  This lawsuit challenges the “good cause” provision of California’s concealed carry permitting statute.  California allows local law enforcement to issue concealed weapon licenses to individuals who can, among other requirements, demonstrate “good cause” for the issuance of the license.  Plaintiff argues that California’s good cause provision violates the Second Amendment to the U.S. Constitution.

Law Center’s Brief:  Our brief, filed in support of the Sacramento County Sheriff’s Department and the agency’s concealed-carry licensing scheme, argues that California’s concealed carry law – that gives discretion to local law enforcement to grant or deny a concealed weapon license – and the Sacramento County Sheriff’s application of that statute are legitimate exercises of the state’s police power aimed at the threat that loaded and hidden firearms pose to public safety.  Moreover, California’s law does not implicate, let alone substantially burden, the right protected by the Second Amendment, and is not subject to heightened scrutiny.  If heightened scrutiny is required, the brief argues, intermediate scrutiny should be applied, and the statute satisfies that standard.

Case Information:  Pizzo v. City and County of San Francisco, No. 09-cv-04493-CW (N.D. Cal. Filed July 9, 2012)

At Issue:  Challenging California’s concealed carry “good cause” provision.  This lawsuit challenges the “good cause” provision contained in California’s concealed carry statute.  Under California law, an applicant for a concealed carry permit may only receive a permit if he or she has demonstrated good cause to carry a concealed firearm.  Plaintiff argues that this provision violates the Second Amendment to the U.S. Constitution.

Law Center’s Brief:  Our brief, filed in support of California’s discretionary concealed carry law, argues that California’s statutory provisions do not fall within the scope of the Second Amendment as it has been interpreted by the U.S. Supreme Court.

Download a PDF of the Pizzo v. City & County of San Francisco Amicus Brief.

Case information:  Woollard v. Gallagher, No. 12-1437 (4th Cir., Filed June 22, 2012)

At issue:  Challenging Maryland’s open carry law.  Woollard involves an appeal from the District Court for the District of Maryland, which declared Maryland’s concealed carry permit law to be an impermissible infringement on the Second Amendment.  The law required that in order to be granted a permit, the applicant must have “a good and substantial reason.”  The court held that the Second Amendment extended to places outside the home, and applied intermediate scrutiny, finding the law “insufficiently tailored to the State’s interest in public safety and crime prevention.”  The court rejected Plaintiff’s claim that the First Amendment doctrine of prior restraint applied to the law.

Law Center to Prevent Gun Violence’s Brief:  Our brief, filed in support of Maryland’s concealed carry law, argues that the right recognized in District of Columbia v. Heller is limited to the home.  The brief explains that public carry was not understood to be part of the right both before and at the time of the adoption of the Second Amendment.  The law at issue is “presumptively lawful” according to Heller because it is part of the longstanding tradition of similar restrictions, including ones upheld by 19th century courts.  The brief argues that the District Court erred in expanding the right beyond Heller at odds with the judicial restraint endorsed by the 4th Circuit and because similar restrictions have been held constitutional post-Heller.

Alternatively, the brief argues that even if the right extends to carrying a handgun in public the law would easily be upheld under intermediate scrutiny.  Intermediate scrutiny only requires a reasonable fit between a regulation and a substantial government interest.  Because the law allows those who demonstrate a need to carry a weapon in public to do so, it fits reasonably between the right and public safety.  Finally, the brief argues that the prior restraint doctrine does not apply because the Second Amendment affords a private right, rather than the public right under the First Amendment, and because laws like Maryland’s statute are presumptively lawful, while those infringing on the First Amendment are presumptively invalid.

Case Information:  People v. Aguilar, No. 112116 (Ill., filed May 30, 2012).

At Issue:  Challenging Illinois’ law prohibiting the possession of firearms outside one’s home or place of business.  People v. Aguilar involves a Second Amendment challenge to an Illinois law prohibiting the possession of firearms outside of one’s home or place of business.  The Illinois Supreme Court is reviewing People v. Aguilar, 944 N.E.2d 816 (Ill. App. Ct. 2011), where the court held that the Second Amendment does not protect the right to possess a firearm in public, and that, even if it did, the statute is substantially related to the goals of protecting the safety of law enforcement and the general public.  Illinois is the only state that completely prohibits the possession of firearms in public places.

LCPGV’s Brief:  Our brief argues that the Second Amendment only protects an in-home right to possess a handgun for self-defense.  Should the Illinois Supreme Court conclude that the right does extend outside of the home, however, the brief argues that the law would satisfy any level of review because the carrying of firearms in public places creates serious public safety risks.  The brief was joined by the City of Chicago, the Association of Prosecuting Attorneys, the Board of Education of the City of Chicago, and the Major Cities Chiefs’ Association.

Case Information:  Moore v. Madigan, No. 12-1269, & Shepard v. Madigan, No. 12-1788 (7th Cir., filed May 16, 2012).

At Issue:  Challenging Illinois’ laws prohibiting the possession of a firearm outside the home on the person or in a vehicle.  Moore and Shepard involve Second Amendment challenges to Illinois statutes that prohibit the carrying of firearms in most places outside a person’s home, and that prohibit the carrying of a gun in a vehicle or on the person while uncased, loaded and immediately accessible.

LCPGV’s Brief:  Our brief argues that:  1) carrying firearms outside the home for self-defense is not within the scope of the Second Amendment; and 2) even if possessing firearms in public is considered within the scope of Second Amendment protection, Illinois’ bans on carrying guns in public and within vehicles are constitutional under the Amendment.  The brief was joined by the City of Chicago, Major Cities Chiefs Association, Board of Education of the City of Chicago, and the Chicago Transportation Authority.

Case Information: Hightower v. City of Boston, No. 11-2281 (1st Cir., filed Apr. 19, 2012).

At Issue:  Challenging Massachusetts’ firearm licensing law.  Hightower involves a Second Amendment challenge to part of Massachusetts’ firearm licensing law that provides for the denial of a license to possess certain types of firearms at the discretion of the licensing authority if the applicant fails to demonstrate he or she is suitable to own or possess such firearms.

LCPGV’s Brief:  Our brief argues that the Second Amendment does not apply because:  1) there is no Second Amendment right to carry concealed, in public, certain types of firearms; and 2) the plaintiff in this case admits that she never applied for a license that may have allowed her to possess a different type of firearm appropriate for her needs.  Furthermore, the brief argues that even if the Second Amendment were to apply, the arguments raised – prior restraint and strict scrutiny – are incompatible with prior Supreme Court case rulings and the nature of firearms.

Case Information: Wilson v. Cook County, No. 112026 (Ill., filed Nov. 18, 2011)

At Issue:  Challenging county ordinance prohibiting sale or possession of assault weapons and large capacity ammunition magazines.  Wilson involves a Second Amendment challenge to Cook County, Illinois’ ordinance prohibiting the sale or possession of assault weapons and large capacity ammunition magazines.

LCPGV’s Brief:  Our brief argues that the Second Amendment does not protect the possession of assault weapons and large capacity ammunition magazines.  Even if the Illinois Supreme Court finds that assault weapons and large capacity magazines do implicate the Second Amendment, the brief continues, Cook County’s ordinance banning them would satisfy review under any level of scrutiny.  The brief was joined by the City of Chicago, the Major Cities Chiefs Association, and the Association of Prosecuting Attorneys.  The court held that plaintiffs sufficiently pleaded a cause of action to withstand a motion to dismiss the Second Amendment challenge.  Due to the limited record available at this point in the case, the court remanded the case for further proceedings to inquire “into the facts bearing on [the] issue of constitutional law.”

Case Information: Richards v. Prieto, No. 11-16255 (9th Cir., filed Sept. 30, 2011)

At Issue:  Challenging California’s concealed carry law.  This lawsuit, like Peruta v. County of San Diego, also challenges California’s policy of allowing local law enforcement discretion in issuing concealed handgun licenses.  In this case, against Yolo County, California, the appellants argue that California’s concealed handgun license law violates the Second Amendment.

LCPGV’s Brief:  Our brief argues that because California’s concealed carry law does not burden the Second Amendment, it is subject to, and clearly satisfies, rational basis review.  Alternatively, if the court finds that the law substantially burdens the Second Amendment, intermediate scrutiny is the proper basis for review, and the statute easily satisfies that test as well.  The brief was joined by the Major Cities Chiefs Association, the Association of Prosecuting Attorneys, and San Francisco District Attorney George Gascon.

The court found that the District of Columbia v. Heller decision does not invalidate California’s concealed carry “good cause” policy because the Second Amendment does not create a fundamental right to carry a concealed weapon in public.  Because the policy does not “substantially burden” a constitutionally-protected right, the court applied rational basis review and found that the state law provision bears a reasonable relationship to a legitimate governmental interest to regulate concealed firearms.  Furthermore, the court refused to invalidate the policy as facially unconstitutional because plaintiffs failed to demonstrate that there are no circumstances under which a permit may be issued to someone who demonstrates good cause and good moral character.