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

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In the last eight years, the U.S. Supreme Court has rejected more than 70 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 Amendment 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 1,090 Second Amendment cases challenging gun laws nationwide, with an overwhelming majority—94%—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:

Notes
  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.

Tracking State Gun Laws: 2014 Developments

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In April of this year, Georgia Governor Nathan Deal signed HB 60, a bill which expands the ability to carry firearms in public spaces such as bars and airports. The media was quick to report that this bill is evidence of a backlash against the many significant gun violence prevention laws enacted in the states last year, despite the media’s predominant narrative from last year that, after Newtown, more states weakened gun laws and the gun lobby “won”. The truth is that the recent media narratives are far from accurate.

Since Newtown, about the same number of laws (64) have strengthened state gun regulations as those that have weakened them (70), not including 38 newly-enacted gun laws that have a minimal impact on gun violence. However, a strict comparison of these numbers without deeper insight into the substance of the laws and where they were enacted is only half the story. Of the states that enacted laws to strengthen gun regulation, 8 states made very significant and, in some cases, sweeping changes to the way it regulates firearms. Alternatively, only 4 states enacted laws that have significantly weakened gun regulation.

Despite popular belief, in the last sixteen months since Newtown, the media has incorrectly portrayed the complicated and nuanced activity in fifty different state legislative bodies. The new laws have been tallied, and often, have been inappropriately equalized. Small bills which keep concealed weapons permit holders’ information private have been categorized as having equal weight to sweeping new laws that require background checks and ban assault weapons. The stories proclaiming the Georgia bill to be a pro-gun backlash make little of the fact that it was the NRA’s top priority in Georgia for two years and, after failing last year, barely scraped by this year and only in a watered-down version. The backlash stories also fail to mention the groundswell of activism that rose in opposition to the bill and succeeded in forcing the gun lobby to strip provision after provision from the measure.

The Law Center has tracked state firearms laws in all fifty states since 2009. Above is a map outlining the breadth of laws that have passed since the tragedy at Sandy Hook Elementary. Our analysis of legislative trends is based on watching and analyzing all gun legislation as it moves through state houses. The data shows us that the public’s mobilization after Newtown resulted in real and sustained change in legislative outcomes, as our team tracks new laws to strengthen gun policy come to unexpected states like South Carolina and Florida while an enormous number of bills to weaken state gun laws get watered down and end without progress.

In addition, a Mother Jones analysis comparing the population of states where gun laws were strengthened to states where they were weakened concluded that more than half of the country lives in states with stronger gun laws since Newtown.

More important than the numbers, or even the context surrounding the numbers, are the real people who have dedicated their lives to changing our nation’s gun laws since Newtown. New organizations such as Moms Demand Action for Gun Sense in America, Americans for Responsible Solutions, Sandy Hook Promise, and Texas Gun Sense and many, many more have formed in just the last sixteen months. Real change happens when real people take action. The story after Newtown is that in every state people are making their voices heard, fighting to strengthen firearms laws, and opposing the gun lobby’s profit-driven efforts. This part of the story is only just beginning and real change will be measured in the lives that are saved.

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In the wake of the Sandy Hook Elementary tragedy, there is no doubt that public support for sensible gun laws has soared. Many legislators are following the lead of the people and fighting for strong new policies to fill the gaps in gun regulation left by Congress. Continue reading

Victory in San Francisco: San Francisco’s Magazine Capacity Limit Upheld

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Recently two California cities—San Francisco and Sunnyvale—took the lead in keeping their communities safe from gun violence by banning the possession of large capacity ammunition magazines. 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 the months following the shooting in Newtown, several states and local communities turned to enacting strong regulations of these weapons of war. When the gun lobby failed to defeat these common sense laws in the political process, they turned to challenging them in the courts, with claims that these laws violate the Second Amendment. In both of the recent cases in California, the plaintiffs have sought preliminary injunctions from the court to stop the laws from taking effect.

Last week, the court in the San Francisco case denied the plaintiffs’ request, finding that they are unlikely to succeed in their claim that the law violates the Second Amendment. The court found that the law was only—at most—a minor burden on Second Amendment protected conduct. In fact, the court expressed some skepticism that large capacity magazines are protected by the Second Amendment at all and noted that the evidence suggested that the average self-defensive gun use only involved firing about two shots.

The court went on to find that the ordinance was a valid measure to promote public safety given the link between large capacity ammunition magazines and mass shootings. As the court put it, the ordinance “prevents mass murders from firing a larger number of rounds faster by depriving them of” high capacity ammunition magazines.

This ruling is consistent with similar rulings upholding large capacity ammunition magazine bans in Connecticut and New York. Of course, this fight is not over.  There are also pending cases raising similar issues in Colorado, Illinois, and Maryland. Plus, the San Francisco ruling is likely to be appealed and another judge of the same court heard argument on a similar motion in the Sunnyvale case late last week. The Law Center will continue to do everything it can to support these communities as they defend these critical laws in the courts.

For more, read our summary of large capacity ammunition laws or read about other recent gun violence prevention success stories.

Governor Brown Signs Critical New Gun Legislation Continuing California’s Commitment to Gun Safety

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California just got safer, and set some amazing records, too. On Friday, October 11th, California Governor Jerry Brown signed 10 new gun violence prevention bills — a record for the State of California and the largest number of strong gun bills signed into law by any state in the nation this year. We are proud to have worked with legislators and activists in California to support this crucial and groundbreaking new legislation.

In the bills signed into law, Governor Brown and the California Legislature have prioritized measures to promote gun safety and prevent prohibited people from accessing weapons. Here are only a few of the new, cutting-edge policies that will help keep our communities safe:

  • AB 500 will require gun owners living with people prohibited from possessing a firearms to store their weapons in a secure manner. That bill will also give the Department of Justice an additional 30 days to conduct a background check when needed to ensure that a gun buyer isn’t a convicted felon or otherwise prohibited from possessing firearms.
  • AB 231 will help prevent tragic accidents involving guns and children by expanding California’s child access prevention law to allow law enforcement to hold a gun owner liable if a weapon is left in a place where a child may gain access to it.
  • AB 48 will keep gun manufacturers from skirting California’s ban on large capacity ammunition magazines by banning “conversion kits,” which allow someone to make ordinary magazines into magazines capable of holding up to a hundred rounds of ammunition.

And these are only a few of the policies that Governor Brown just signed into law.

Although we are disappointed that the governor vetoed seven strong bills to prevent gun violence, we are extremely pleased with the historic progress otherwise made by the legislature this year. We are proud of the success California has seen implementing smart gun laws and encouraged that it continues to promote effective policies that can make our communities safer. In a year marked with a seemingly endless list of tragic shootings, Governor Brown has heard the voice of gun owners and non-gun owners alike — inaction on preventing gun violence is unacceptable.

For a summary of all of the gun violence prevention bills, visit our summary of 2013 California legislation to prevent gun violence.

For more on the drop in gun death rates in California, visit our publication, The California Model: Twenty Years of Putting Safety First.

The Takings Clause: Not An Obstacle To Smart Gun Laws

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The gun lobby has consistently tried to use the threat of lawsuits to scare communities away from enacting smart gun laws.  One of the ways they have tried to do that is by claiming that laws prohibiting certain unreasonably dangerous guns or ammunition magazines are inconsistent with the Takings Clause of the The Fifth Amendment to the United States Constitution.  However, like other gun lobby claims about the Constitution, this claim is false.

The Takings Clause provides that the government shall not take “private property . . . for public use, without just compensation.”1  This provision requires the government to compensate property owners when it takes their property for public use.  Most commonly, the Takings Clause has been raised in litigation related to real property (land) where the government is attempting to take or regulate the use of the property through zoning in order to benefit the general public.2

Laws banning especially dangerous guns—such as assault weapons—and large capacity ammunition magazines are not takings and do not require compensation.  The Supreme Court and lower courts have long made a distinction between takings of property for public usage, which are takings, and legitimate exercises of state police power that result in a ban or limitation on property that is a threat to public safety or health, which are not takings.3

Recognizing this distinction, several courts have rejected Takings Clause challenges to laws banning the possession of dangerous weapons.  For example, in Fesjian v. Jefferson, the District of Columbia Court of Appeals upheld a D.C. law that effectively banned machine guns.4  The court found that “the statute in question is an exercise of legislative police power and not of eminent domain” and therefore did not constitute a taking, even though the ban contained no “grandfather clause” and required owners to dispose of their machine guns.5  Similarly, the Eleventh Circuit in Gun South, Inc. v. Brady rejected a Takings Clause challenge to a law temporarily suspending the importation of certain assault weapons, noting that the government in that case was acting “in a purely regulatory capacity and d[id] not profit from its actions.”6

More recently, in Akins v. United States, the Court of Federal Claims rejected a Takings Clause challenge brought by the inventor of a firearm device that the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) reclassified as a machine gun, subject to certain sale and possession restrictions.7  Because ATF was acting pursuant to its conferred police power, the court held that inventor could not state a compensable takings claim under the Fifth Amendment.8 As the court plainly articulated, “[p]roperty seized and retained pursuant to the police power is not taken for a ‘public use’ in the context of the Takings Clause.”9 Quoting longstanding Supreme Court precedent, the court added, “[a] prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed to be a taking or an appropriation of property for the public benefit.”10

Courts have also reached the same conclusion in other contexts where governments have acted to regulate or ban potentially dangerous goods or property in order to protect the public health and safety.  For example, courts have rejected Takings Clause challenges in instances where local ordinances were enacted to prohibit ownership of potentially dangerous dog breeds.11

Though courts have upheld laws requiring the destruction or disposal of dangerous property pursuant to the police power where owners could not recover any monetary value from their property, the courts have found takings arguments even weaker where the law allows the property owner to recover some monetary value from the regulated property.  For example, in Quilici v. Village of Morton Grove, the court rejected a takings challenge to an ordinance banning possession of certain firearms within a city, noting that gun owners could still sell or otherwise dispose of their prohibited firearms to individuals outside the city limits.12

In short, because laws banning dangerous guns and ammunition seek to protect the public rather than to confiscate private property for public use, they are perfectly consistent with the Takings Clause of the Fifth Amendment.

 

Notes
  1. U.S. Const. Amend. V.
  2. See, e.g., Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984) (upholding the taking of property with compensation from lessors to transfer it to lessees in order to reduce the concentration of land ownership in the state of Hawaii); Berman v. Parker, 348 U.S. 26 (1954) (upholding the taking of property with compensation in a blighted area of Washington, D.C. in order to promote growth and public health).
  3. See, e.g., Mugler v. Kansas, 123 U.S. 623, 668-669 (1887); Eggleston v. Pierce County, 64 P.3d 618, 623 (Wash. 2003) (“[C]learly, not every government action that takes, damages, or destroys property is a taking. ‘Eminent domain takes private property for a public use, while the police power regulates its use and enjoyment, or if it takes or damages it, it is not a taking or damaging for the public use, but to conserve the safety, morals, health and general welfare of the public.’”); Hunter v. Adams, 180 Cal. App. 2d 511, 523 (1960) (“If the injury is the result of legitimate governmental action reasonably taken for the public good and for no other purpose, and is reasonably necessary to serve a public purpose for the general welfare, it is a proper exercise of the police power to permit the taking or damaging of private property without compensation.”) (citing Chicago, B. & Q. R. Co. v. Illinois, 200 U.S. 561, 593-594 (1906) ) (other citations omitted).
  4. 399 A.2d 861 (D.C. Ct. App. 1979).
  5. Id. at 865-66. See also, Kuhn v. Cissel, 409 A.2d 182, 186 (D.C. Ct. App. 1979) (holding that the D.C. police department’s destruction of a shotgun voluntarily surrendered to the police by a third party, pursuant to a statute that generally required the destruction of any firearm turned over to the police, was a legitimate exercise of police power and not an unconstitutional taking of appellant’s property.
  6. 877 F.2d 858, 869 (11th Cir. 1989).
  7. 82 Fed. Cl. 619, 623 (2008).
  8. Id.
  9. Id. at 622; see also, Amerisource Corp. v. United States, 525 F.3d 1149, 1153 (Fed. Cir. 2008).
  10. Id. (quoting Mugler v. Kansas, 123 U.S. 623, 668 (1887).
  11. See, e.g., Garcia v. Village of Tijeras, 108 N.M. 116, 123 (1988) (upholding a  law banning pit bulls against a Takings Clause challenge because “[t]he ordinance, being a proper exercise of the Village’s police power, is not a deprivation of property without due process even though it allows for the destruction of private property . . . . [T]he Village has legitimately exercised the police power to curtail a menace to the public health and safety.”); Hearn v. City of Overland Park, 244 Kan. 638, 646 (1989) (same);  Singer v. City of Cincinnati, 566 N.E.2d 190, 192 (1990) (same).
  12. 532 F. Supp. 1169, 1184 (N.D. Ill. 1981).

Governor Hickenlooper’s Signing of Gun Bills in Colorado Reveals Trend in States Towards Gun Safety

The Law Center applauds Governor Hickenlooper and the Colorado Legislature on the passage of historic bills to prevent gun violence. While Colorado is leading the way, it is not alone: over 600 bills to prevent gun violence have been introduced this year, a 63% increase over this time last year. The call for change is being heard at the state level nationwide.

Strong gun laws to keep dangerous weapons out of the wrong hands are consistent with the Second Amendment and are necessary to defending our communities from the constant threat of violence.

Colorado is a leader in the nation, as many states across the country are hearing the voice of gun owners and non-gun owners alike – inaction on preventing gun violence is unacceptable.

With the adoption of these measures, Colorado has taken important steps toward preventing mass shootings like the tragedies in Aurora and Columbine, as well as the everyday gun violence that plagues communities nationwide.

After the tragedy in Newtown, the American people are demanding changes to our weak gun laws, including states with strong traditions of firearm ownership, like Colorado. The passage of this historic legislation reaffirms that Americans overwhelmingly support important measures like these to protect our families from gun violence.

Colorado is one of 17 states that introduced bills in 2013 to ban, or strengthen an existing ban, on large capacity ammunition magazines and one of 16 to introduce bills to require background checks for some or all private sales.

We are proud to have worked with activists in Colorado in support of this crucial legislation.

Want more? Check out the other recent success stories.

President Obama: Thank You.

This is what we’ve been waiting for. President Obama outlined bold, courageous, and comprehensive steps to address the devastating gun violence that our communities face every single day – exactly what we asked of him.

Obama’s commitment today – to support federal legislation to fix our background check system and to ban military-style assault weapons and large capacity ammunition magazines – confirms that we are at a historic moment.

We commend President Obama’s swift and thorough executive actions and the outstanding leadership of Vice President Biden and his task force as essential first steps in addressing the epidemic of gun violence in America. We know that we have a long road ahead to achieve safer communities, and it’s going to take all of us to make real and lasting change. As the President said:

“This will not happen unless the American people demand it.”

That means all of us. President Obama has called on all of us to ask our members of Congress to support the president’s recommendations for real change. If they tell you that they don’t support these measures, ask them, “Why not?” Ask them, “What is more important than keeping our families safe?”

We are responsible for each other. The President and the White House have committed to do their part. It’s imperative that we each do ours.

Find your member of Congress now and make the call: http://bit.ly/myrepresentative

Thank you, Gabby and Mark

Today marks another dark anniversary in our country’s history. Two years ago, our nation mourned a horrific act in Tucson, Arizona – where a beloved congresswoman, Gabrielle Giffords, was shot in the head by a dangerously mentally ill man and barely survived. Six Americans in the crowd were killed and thirteen were gravely wounded alongside her. Since then, we, as a nation, have witnessed shooting after shooting – in our theatres, shopping malls, and houses of worship – yet have done next to nothing to stop them.

We cannot let this violence continue.

Gabby Giffords is not willing to stand by and do nothing. The horrific event that changed her life two years ago today has made her more resilient and determined than ever. Earlier today, she announced that she and her husband Mark Kelly will fight to find responsible solutions to the massive loss of life that we experience on a daily basis.

“We have experienced too much death and hurt to remain idle. Our response to the Newtown massacre must consist of more than regret, sorrow and condolence. The children of Sandy Hook Elementary School and all victims of gun violence deserve fellow citizens and leaders who have the will to prevent gun violence in the future.”

That means all of us. Help us thank Gabby Giffords and Mark Kelly for their bravery and tenacity by joining them. Your voice is needed to tell your legislators that you support them and will continue to support them in the fight to end these tragedies.

Vice President Biden’s task force is in meetings this week to discuss the next steps. Please call your legislators and tell them that you want them to support the following smart and effective solutions to the end the bloodshed:

1) A background check with all gun sales
2) A ban on military-style assault weapons
3) A ban on large capacity ammunition magazines – some of which can hold 100 rounds of ammunition

Tell them that they must take action today – because the safety of our loved ones depends on it.

Find your legislators now and call: http://bit.ly/myrepresentative

Mass Shooting in Oak Creek: “You’re talking about Aurora one minute, and the next minute it’s you and your family.”

Photo : Reuters

As Americans, we pride ourselves on our freedom to participate in the activities that make our communities rich and vibrant—to worship where we want, to see the movies that we want, to attend political rallies in supermarket parking lots if we so choose. But the fact is that we are not truly free to do any of these things, not when the very real specter of gun violence remains ever-present, threatening to take everything as we go about our lives.

With the nation still reeling from the mass shooting that left 70 people injured or killed in a movie theater in Aurora, Colorado, Americans were completely unprepared for another devastating tragedy just two weeks later. Six innocent people died and three were critically injured by Wade Michael Page at a Sikh temple in Oak Creek, Wisconsin on Sunday, in another terrible reminder that gun violence can, and does, happen anywhere and at any time.

“You’re talking about Aurora one minute, and the next minute it’s you and your family,” [Kanwardeep Singh Kaleka, nephew of Sikh temple president Satwant Kaleka, who was killed in the shooting] said.

“I just never thought it would be at a temple, at a place of worship. I don’t want people to have to carry a gun at a place of worship,” said Kaleka, who added that he could have been at the temple during the attack, but for the fact he had stopped at a bank “randomly to make a deposit.”1

Gun violence shatters families nationwide every day. Every single day, roughly 32 people are murdered by guns across the U.S., almost three times the number of people killed in Aurora and over five times the number killed in Oak Creek. We hear almost nothing about most of the shootings that occur in America. If the media covered all of them, stories of gun violence would regularly eclipse all other news.

The media coverage of Oak Creek, like Aurora, will pass, but the gun deaths will continue, every day, in different places all over the country. That won’t change unless we seriously address the causes of this crisis. Right now, dangerous people have easy access to military-style weapons. Until our national leaders confront this challenge head-on – with courage, not condolences – too many in our communities will continue to suffer.

Solutions to our national gun violence epidemic do exist. Smart laws – like those requiring background checks for every gun purchase and restricting access to assault weapons and large capacity ammunition magazines – can prevent future gun violence tragedies. When it comes to holding our legislators accountable, we shouldn’t demand anything less.

Notes
  1. CNN Wire Staff, Police identify Army veteran as Wisconsin temple shooting gunman, Aug. 6, 2012.