Protecting Strong Gun Laws: The Supreme Court Leaves Lower Court Victories Untouched

Posted on November 12, 2013

supremecourttwilight

In the last five 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 800 Second Amendment cases challenging gun laws nationwide, with an overwhelming majority—96%—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:

  • Challenge restrictions on concealed and open carrying of firearms in public.2 For example, the Court denied review in Kachalsky v. Cacace, a case in which the Second Circuit Court of Appeals upheld a New York law prohibiting the issuance of a concealed carry permit unless the applicant can demonstrate that good cause exists to issue the permit.  The Court also denied review in Woollard v. Gallagher and Williams v. State of Maryland, cases challenging a similar concealed carry permit scheme in Maryland.  These denials make clear that states still retain the discretion to pass strong laws regulating the carrying of firearms in public even after the Heller decision.
     
  • Challenge the constitutionality of laws prohibiting felons,3 domestic abusers,4 and/or certain misdemeanants from possessing firearms.5  The federal government and many states have laws prohibiting felons and/or other criminal offenders from possessing firearms.  These laws have been virtually unanimously upheld by lower courts and the Supreme Court has repeatedly declined to review those decisions.  For example, the Court declined to review the Tenth Circuit’s decision in United States v. Reese, which upheld a federal law prohibiting persons subject to domestic violence restraining orders from possessing firearms.  The Supreme Court’s reluctance to review these decisions shows that policy-makers have the flexibility to prohibit dangerous people from accessing firearms.
     
  • Challenge restrictions on the possession of machine guns and other types of military-style weapons.6 The Supreme Court made clear in Heller that the Second Amendment does not protect “dangerous and unusual weapons” and the lower courts have followed that direction by upholding numerous laws restricting the possession of machine guns and assault weapons.
     
  • Challenge firearm registration requirements.7 In Justice v. Town of Cicero, the Seventh Circuit Court of Appeals upheld a local law requiring the registration of all firearms.  The court declined to review that decision, leaving law enforcement with an important tool to keep track of guns in their communities.
     
  • Challenge restrictions of firearms in national parks and other publicly owned places.8 In Heller, the Court acknowledged the government’s continuing ability to regulate the possession of guns in sensitive places, and unsurprisingly, lower courts have upheld laws and regulations that restrict the use of firearms in public parks.  The Supreme Court has declined to review any of these decisions.

The good news is that these are only some examples of the Supreme Court’s action on gun laws nationwide. The Court has also declined to review numerous other cases upholding federal, state, and local laws and policies restricting the use of firearms, including laws designed to keep guns out of the hands of children and laws that help law enforcement curb gun trafficking.9 As a result, the numerous federal and state court decisions upholding these and many other common sense gun laws have been left undisturbed, allowing communities to protect themselves from rampant gun violence.

The Law Center has filed amicus briefs in support of the life-saving gun measures in Heller and dozens of significant Second Amendment cases sine. Our legal team continues to track Second Amendment litigation nationwide and helps to defend these laws in the courts.  For more on the types of gun laws being challenged and upheld, read our publication The Second Amendment Battleground: Victories in the Courts and Why They Matter.

 

  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. []
  2. Kachalsky v. Cacace, 701 F.3d 81 (2d Cir. 2012), cert denied 133 S. Ct. 1806 (2013); Brown v. United States, 979 A.2d 630 (D.C. 2009), cert denied 2010 U.S. LEXIS 9811 (Dec. 13, 2010); People v. Dawson, 403 Ill. App. 3d 499 (2010), cert denied 2011 U.S. LEXIS 3381 (May 2, 2011); Commonwealth v. Powell, 459 Mass. 572 (Mass. 2011), cert denied, 2012 U.S. LEXIS 2231 (Mar. 19, 2012) (the court also rejected a Second Amendment challenge to a law requiring the registration of all firearms); Williams v. State of Maryland, 10 A.3d 1167, 1178 (Md. 2011), cert denied 132 S.Ct. 93 (2011). []
  3. United States v. Torres-Rosario, 658 F.3d 110 (1st Cir. 2011), cert denied 2012 U.S. LEXIS 2204 (Mar. 19, 2012); United States v. Scroggins, 599 F.3d 433 (5th Cir. 2010), cert denied 131 S. Ct. 158 (2010); United States v. Moore, 326 Fed. Appx. 794 (5th Cir. 2009), cert denied 2009 U.S. LEXIS 6669 (2009); Triplett v. Roy, 326 Fed. Appx. 720 (5th Cir. 2009), cert denied 2009 U.S. LEXIS 6345 (Oct. 5, 2009); United States v. Anderson, 559 F.3d 348 (5th Cir. 2009), cert denied 129 S. Ct. 2814 (2009); United States v. Whisnant, 391 Fed. Appx. 426 (6th Cir. 2010), cert denied 131 S. Ct. 586 (2010); United States v. Khami, 362 Fed. Appx. 501 (6th Cir. 2010), cert denied 130 S. Ct. 3345 (2010); United States v. Hamer, 319 Fed. Appx. 366 (6th Cir. 2009), cert denied 2009 U.S. LEXIS 6742 (Oct. 5, 2009); United States v. Frazier, 314 Fed. Appx. 801 (6th Cir. 2008), cert denied 129 S. Ct. 1652 (2009); United States v. Williams, 616 F.3d 685 (7th Cir. 2010), cert denied 178 L. Ed. 2d 532 (2010); United States v. Brown, 436 Fed. Appx. 725 (8th Cir. 2011), cert denied 182 L. Ed. 2d 263 (2012); United States v. Duckett, 406 Fed. Appx. 185 (9th Cir. 2010), cert denied 2011 U.S. LEXIS 4849 (June 27, 2011); United States v. Schwindt, 378 Fed. Appx. 721 (9th Cir. 2010), cert denied 2010 U.S. LEXIS 7256 (Oct. 4, 2010); United States v. Parker, 371 Fed. Appx. 749 (9th Cir. 2010), cert denied 2010 U.S. LEXIS 8319 (Oct. 18, 2010); United States v. Vongxay, 594 F.3d 1111 (9th Cir. 2010), cert denied 2010 U.S. LEXIS 7235 (Oct. 4, 2010); United States v. Gieswein, 346 Fed. Appx. 293 (10th Cir. 2009), cert denied 2010 U.S. LEXIS 1462 (Feb. 22, 2010); United States v. McCane, 573 F.3d 1037 (10th Cir. 2009), cert denied 2010 U.S. LEXIS 2009 (Mar. 1, 2010); United States v. Nicoll, 400 Fed. Appx. 468 (11th Cir. 2010), cert denied 179 L. Ed. 2d 354 (2011); United States v. Feaster, 394 Fed. Appx. 561 (11th Cir. 2010), cert denied 178 L. Ed. 2d 796 (2011) (the court also rejected a Second Amendment challenge to a sentence enhancement for possessing a firearm during a drug trafficking crime); United States v. Rozier, 598 F.3d 768 (11th Cir. 2010), cert denied 177 L. Ed. 2d 313 (2010); State v. Whitaker, 201 N.C. App. 190 (N.C. Ct. App. 2009), cert denied 130 S. Ct. 3428 (2010). []
  4. United States v. Reese, 627 F.3d 792 (10th Cir. 2010), cert denied 131 S.Ct. 2476, 179 LEd. 1214, 2011 U.S. LEXIS 3768 (U.S., May 16, 2011) (rejecting Second Amendment challenge to prohibition on the possession of firearms by persons subject to domestic violence restraining orders); In re M.M., 2010 N.J. Super. Unpub. LEXIS 749 (N.J. Sup. Ct. App. Div. 2010), cert denied 2011 U.S. LEXIS 1502 (Feb. 22, 2011) (rejecting Second Amendment challenge to state law authorizing forfeiture of firearms when an officer has probable cause to believe that an act of domestic violence has been committed). []
  5. Booker v. United States, 644 F.3d 12 (1st Cir. 2011), cert denied 2012 U.S. LEXIS 1581 (2012); United States v. Staten, 666 F.3d 154 (4th Cir. 2011), cert denied 2012 U.S. LEXIS 2735 (2012); United States v. Donovan, 410 Fed. Appx. 979 (7th Cir. 2010), cert denied 180 L. Ed. 2d 859 (2011); United States v. Skoien, 614 F.3d 638 (7th Cir. 2010), cert denied 2011 U.S. LEXIS 2138 (Mar. 21, 2011); People v. DeLacy, 192 Cal. App. 4th 1481 (2011), cert denied 132 S. Ct. 1092 (2012); Chein v. S.C., 2011 Cal. LEXIS 3357 (2011) (denying review of order issued in People v. Chein, No. 0AH04080 (order dated 12/17/10) (unpublished), cert denied 2011 U.S. LEXIS 8494 (Nov. 28, 2011). []
  6. United States v. Zaleski, 489 Fed. Appx. 474 (2d Cir. 2012), cert denied 133 S.Ct. 554 (2012); Hamblen v. United States, 591 F.3d 471 (6th Cir. 2009), cert denied 2010 U.S. LEXIS 3811 (May 3, 2010) (the court also rejected a challenge to a federal law prohibiting the possession of unregistered types of firearms); United States v. Fincher, 538 F.3d 868 (8th Cir. 2008), cert denied 2009 U.S. LEXIS 1585 (Feb. 23, 2009); United States v. McCartney, 357 Fed. Appx. 73 (9th Cir. 2009), cert denied 130 S. Ct. 1919 (2010) (the court also rejected a challenge to a federal law prohibiting the possession of unregistered types of firearms); People v. James, 174 Cal. App. 4th 662 (2009), cert denied 2010 U.S. LEXIS 1284 (Feb. 22, 2010). []
  7. Justice v. Town of Cicero, 577 F.3d 768 (7th Cir. 2009), cert denied, 130 S.Ct. 3410 (2010). []
  8. United States v. Masciandaro, 638 F.3d 458 (4th Cir. 2011), cert denied 2011 U.S. LEXIS 8647 (Nov. 28, 2011); United States v. Dorosan, 350 Fed. Appx. 874 (5th Cir. 2009), cert denied 176 L. Ed. 2d 198 (2010); Embody v. Ward, 695 F.3d 577 (6th Cir. 2012), cert denied 133 S.Ct. 770 (2012) (rejecting Second Amendment challenge to park ranger’s action in detaining and disarming park visitor); Nordyke v. King, 681 F.3d 1041 (9th Cir. 2012), cert denied 133 S.Ct. 840 (2013) (rejecting Second Amendment challenge to county ordinance making possession of a firearm on county property a misdemeanor where county allowed gun shows and sales under an exception for “events” provided the firearms at the events were secured to prevent unauthorized use). []
  9. For example, the Court has repeatedly rejected cases challenging the federal sentence enhancements for using a gun during the commission of certain crimes.  See United States v. Kearns, 429 Fed. Appx. 350 (4th Cir. 2011), cert denied 181 L. Ed. 2d 226 (2011); United States v. Hudson, 422 Fed. Appx. 343 (5th Cir. 2011), cert denied 2011 U.S. LEXIS 8130 (Nov. 14, 2011); United States v. Spaulding, 366 Fed. Appx. 670 (7th Cir. 2010), cert denied 2010 U.S. LEXIS 6517 (Oct. 4, 2010); United States v. King, 333 Fed. Appx. 92 (7th Cir. 2009), cert denied 130 S. Ct. 430 (2009); United States v. Jackson, 555 F.3d 635 (7th Cir. 2009), cert denied 130 S. Ct. 147 (2009); United States v. Seay, 620 F.3d 919 (8th Cir. 2010), cert denied 2011 U.S. LEXIS 613 (Jan. 18, 2011); United States v. Potter, 630 F.3d 1260 (9th Cir. 2011), cert denied 2011 U.S. LEXIS 6117 (Oct. 3, 2011); United States v. Angelos, 417 Fed. Appx. 786 (10th Cir. 2011), cert denied 2011 U.S. LEXIS 7042 (Oct. 3, 2011); Paige v. United States, 25 A.3d 74 (D.C. 2011), cert denied 132 S. Ct. 1605 (2012) (the court also rejected a Second Amendment challenge to a law forbidding the carrying of a pistol without a license); People v. Coleman, 2011 Ill. App. Unpub. LEXIS 220 (2011), cert denied 2012 U.S. LEXIS 2548 (Apr. 2, 2012); Michigan v. Gerell, 2009 Mich. App. LEXIS 1152 (Mich. Ct. App. 2010), cert denied Charles v. Michigan, 2010 U.S. LEXIS 563 (Jan. 19, 2010).  The Court has also declined to review numerous other cases upholding firearms related laws, regulations, and practices.  See United States v. Dancy, 640 F.3d 455 (1st Cir. 2011), cert denied 2011 U.S. LEXIS 8072 (Nov. 7, 2011) (rejecting Second Amendment challenge to interpretation of federal gun laws which construed the term “firearm” to include inoperable guns); United States v. Rene E., 583 F.3d 8 (1st Cir. 2009), cert denied 175 L. Ed. 2d 921 (2010) (rejecting Second Amendment challenge to law prohibiting juvenile possession of a handgun); US v. Decastro, 682 F.3d 160 (2d. Cir. 2012), cert denied 133 S.Ct. 838 (2013) (rejecting Second Amendment challenge to prohibition on transporting firearms across state lines); United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010), cert denied 131 S. Ct. 958 (2011) (rejecting Second Amendment challenge to prohibition on possession of firearms with obliterated serial numbers); United States v. Portillo-Munoz, 643 F.3d 437 (5th Cir. 2011), cert denied 2012 U.S. LEXIS 3243 (Apr. 23, 2012) (rejecting challenge to statute prohibiting firearm possession by undocumented persons); United States v. Castro, 2011 U.S. App. LEXIS 26000 (9th Cir. 2011), cert denied 132 S. Ct. 1816 (2012) (rejecting Second Amendment challenge to conviction for conspiracy to deal firearms without a license in violation of federal law); United States v. Gilbert, 286 Fed. Appx. 383 (9th Cir. 2008), cert denied 2008 U.S. LEXIS 8460 (Nov. 17, 2008) (rejecting Second Amendment challenge to district court’s refusal in a criminal case to instruct the jury that the Second Amendment afforded an individual right to possess firearms for personal use and allow the defendant to testify as to his understanding and beliefs concerning the Second Amendment); Farmer v. State, 235 P.3d 1012 (Alaska 2010), cert denied 2011 U.S. LEXIS 2711 (Apr. 4, 2011) (rejecting Second Amendment challenge to state’s refusal to expunge a felony conviction); Warmus v. Ohio, 197 Ohio App.3d 383 (2011), cert denied 133 S. Ct. 335 (2012) (rejecting Second Amendment challenge to law placing the burden of proof on the defendant to establish self-defense in criminal case). []