Last month, the U.S. Court of Appeals for the Tenth Circuit confirmed that a law requiring that someone be a Colorado resident in order to qualify for a license to carry a concealed weapon in the state remains consistent with the Second Amendment.
As discussed in this important decision, the requirement to prove state residency defined by Colorado law is an essential component of firearms licensing. Many of the state and local records that would disqualify someone from possessing or carrying a firearm — such as those reflecting a criminal conviction or mental health adjudication — are not transmitted between states, making the proof of state residency pivotal to keeping weapons out of the hands of dangerous people.
Although the court could have only addressed Colorado’s residency requirement, the Tenth Circuit held more broadly that “the carrying of concealed weapons is not protected by the Second Amendment,” thus rejecting the plaintiff’s claim. This decision is particularly noteworthy because Second Amendment challenges to concealed carry licensing laws are currently pending in several other federal appellate courts around the country, setting an important precedent for other courts to uphold existing licensing laws.
This Thursday, December 6th, the Ninth Circuit Court of Appeals in San Francisco will consider an issue of critical importance to the safety of our communities: whether the Second Amendment guarantees the right to carry a concealed, loaded handgun in public places.
Three cases being heard on Thursday morning involve challenges to state laws in California and Hawaii that require an applicant for a concealed carry license to show a legitimate need to carry a weapon.
We’ve been supporting defense counsel with our Second Amendment expertise because we know how important these cases are. Favorable decisions here could reaffirm law enforcement’s ability to protect public safety by limiting the number of people carrying hidden, loaded handguns in California and Hawaii.
The three cases being heard by the Ninth Circuit are Peruta v. County of San Diego (challenging San Diego County’s application of the California law), Richards v. Prieto (challenging Yolo County’s application of the same law), and Baker v. Kealoha (challenging Hawaii’s law).
For more about these cases, read our amicus briefs in Peruta and Richards. If you live in the Bay Area, oral arguments are open to the public, and the Ninth Circuit courthouse is located at 95 7th Street in San Francisco. On Friday, audio and video of the arguments will be available on the Ninth Circuit’s web site.
These cases will undoubtedly have nationwide significance in this emerging area of Second Amendment jurisprudence. The Second Circuit recently upheld New York’s discretionary concealed carry law in a great decision, and similar cases are also pending in the Third and Fourth Circuits.
Case Information:Birdt v. L.A. Sheriff’s Department, Civil No. 12-55115 [DC No. CV-08377-JAK] (9th 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.
Case Information:Mehl v. Blanas, No. 08-15773 (9th 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.
Over the past four years, our nation’s courts have become a major battleground in the debate about gun violence in our communities. Right now, people who want to carry loaded firearms on public streets are forcing judges across the country to question the scope of the Second Amendment. But where should judges turn for guidance in evaluating these claims? The Supreme Court’s landmark Heller decision in 2008 effectively upended the legal understanding of the Second Amendment that had existed for almost eighty years. When it comes to gun litigation, courts are now having to evaluate how to keep our communities safe with little Second Amendment case law to guide them.
The Law Center is helping to fill that void through amicus curiae (“friend of the court”) briefs in significant Second Amendment cases across the country. Because we are the only organization in the country that tracks Second Amendment litigation, national, state, and local firearms laws, and pending firearms legislation nationwide, we have unique expertise that can help courts understand the critical importance of smart laws to prevent gun violence. Through amicus briefs, we can present that expertise to courts shaping the meaning of the Second Amendment.
Amicus briefs enable us to get involved in precedent-setting cases that have nationwide significance, since numerous challenges to similar gun laws are currently pending before courts across the country. We recently filed an amicus brief in the First Circuit Court of Appeals in Hightower v. Boston, in which we argued that a Massachusetts law requiring a license to carry a concealed weapon in public does not violate the Second Amendment. When the court issued its decision upholding the law on August 30th, it became the first federal appellate court in the nation to issue a decision on a Second Amendment challenge to a concealed carry law. Six other federal appellate courts are currently facing similar challenges. READ MORE »
The Law Center’s latest brochure, The Second Amendment Battleground: Victories in the Courts and Why They Matter, examines trends in Second Amendment litigation since the U.S. Supreme Court’s landmark District of Columbia v. Heller decision in 2008. Although the Heller Court held that the Second Amendment protects a responsible, law-abiding citizen’s right to possess an operable handgun in the home for self-defense, the vast majority of courts that have heard Second Amendment challenges since that case have rejected them, upholding a wide variety of gun laws as constitutional.
As the publication describes, smart gun laws aren’t just constitutional. They’re also critical to preventing gun violence in our communities.
Heller and the Explosion of Second Amendment Litigation
Four years ago, the U.S. Supreme Court singlehandedly inserted the judicial system into the ongoing national debate over gun laws in America. In a 5-4 decision in 2008’s District of Columbia v. Heller,1 the Court invalidated the District of Columbia’s handgun ban and firearm storage law, stating for the first time that the Second Amendment protects a responsible, law-abiding citizen’s right to possess an operable handgun in the home for self-defense.
Heller was unquestionably a radical decision, overturning the Court’s previous ruling that the Second Amendment was tied to state militia service.2 For almost seventy years, lower federal and state courts nationwide had relied on that pronouncement to reject hundreds of Second Amendment challenges.
The Heller decision immediately drew strong criticism from a wide array of legal scholars, historians, advocates, and legislators, including a particularly scathing rebuke from respected conservative judge Richard Posner, who noted that, “The only certain effect of the Heller decision…will be to increase litigation over gun ownership.”3
In fact, new litigation started almost immediately. The day that Heller was announced, plaintiffs filed a lawsuit challenging the City of Chicago’s handgun ban, with a second suit filed the next day. Other suits emerged soon after, escalating once the Supreme Court confirmed that the Second Amendment also applied to state and local laws in 2010’s McDonald v. City of Chicago decision.4 After that case, the number of lawsuits challenging gun laws nationwide skyrocketed.
Seventh Circuit Judge Richard Posner criticized Justice Scalia’s majority opinion in Heller5
Thankfully, despite the explosion of litigation, courts across the country have rejected the overwhelming majority of Second Amendment challenges initiated since Heller. As discussed here, gun rights advocates and criminal defendants across the country have sought to expand the Second Amendment to invalidate almost every gun law on the books today. In siding with us and the majority of Americans who support sensible gun laws, courts are finding that smart laws aren’t just constitutional – they’re also critical to keeping our communities safe from gun violence.
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.
As courts across the country hear Second Amendment challenges against important state gun laws, LCPGV is weighing in, turning our legal expertise into a series of amicus curiae (“friend of the court”) briefs filed in several significant cases.
Three of these cases — Moore v. Madigan and Shepard v. Madigan in the U.S. Court of Appeals for the Seventh Circuit, and People v. Aguilar in the Illinois Supreme Court — involve Second Amendment challenges to Illinois statutes that prohibit the carrying of firearms (either openly or concealed) in public places. Illinois is the only state the continues to prohibit both open and concealed carry. In all three cases, the LCPGV briefs argue 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’ ban on carrying guns in public is constitutional.
We made similar arguments in the U.S. Court of Appeals for the First Circuit in Hightower v. City of Boston. The Hightower case involves a Second Amendment challenge to Massachusetts’ firearm licensing law, which enables law enforcement to deny an application to carry a concealed weapon if the applicant fails to demonstrate he or she is a person suitable to own or possess such firearms. Our Hightower brief argues that the Second Amendment does not apply, and that even if it did, the “suitable person” standard easily survives scrutiny.
Louisiana recently passed legislation that would amend the state constitution to remove language specifically allowing the state to regulate concealed weapons, and provide that the right to keep and bear arms is “fundamental and shall not be infringed.” The proposed amendment – which now must be adopted by the voters of Louisiana – also takes the highly unique step of enshrining in the state constitution a higher standard of proof for determining the constitutionality of any law that may restrict Louisiana residents’ ability to own and carry guns.
