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

supremecourttwilight

In the last seven 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 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 1,000 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.

District Court Strikes Down Washington, D.C. Ban on Public Carrying of Handguns

Overlooking-DC

For many years, the District of Columbia prohibited individuals from carrying handguns in public in order to protect District residents and visitors from gun violence. On July 26, 2014, however, a trial court judge interpreted the Second Amendment to allow individuals to carry guns outside of the home, and struck down the District’s policy. The judge’s ruling in the case, Palmer v. District of Columbia, allows residents and non-residents alike to carry handguns1. Fortunately,The ruling has been stayed for 90 days to allow the District to appeal the decision, or institute a licensing scheme that regulates the carrying of guns in public.

By far the most litigated Second Amendment issue since the Supreme Court’s controversial 2008 decision in Heller v. District of Columbia—which found that law-abiding, responsible individuals have a right to own an operable handgun for self-defense in the home—is whether the Second Amendment also protects a right to carry a firearm outside the home.2  As the Palmer court recognized, the Supreme Court has not yet ruled on this issue3, while a significant number of lower courts have concluded that the Second Amendment only protects the right to possess a gun for self-defense in the home. Nonetheless, since Heller, emboldened gun-lobby groups and individual plaintiffs have brought an onslaught of cases challenging laws that regulate a person’s ability to carry a gun outside of the home.

As of 2012, the only two jurisdictions prohibiting the practice of possessing guns outside the home were Washington, D.C. and Illinois. Illinois’ law was struck down in 2012 on Second Amendment grounds by the Seventh Circuit in Moore v. Madigan.4  The Moore court made clear, however, that laws regulating the possession of guns outside the home are permissible and the court suggested that regulations granting law enforcement discretion to issue concealed carry permits would be constitutional.

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Notes
  1. 2014 U.S. Dist. LEXIS 101945. The Palmer court held that the District cannot prohibit non-residents from carrying firearms in the District solely because they are not District residents. The court reasoned that non-residents also have a Second Amendment right to carry guns outside the home for self-defense. However, in Peterson v. Martinez, 707 F.3d 1197, 1202 (10th Cir. 2013), the Tenth Circuit upheld Colorado’s law limiting concealed carry permits to Colorado residents. The court found the residency requirement to be constitutional and substantially related to the important government interest of protecting public safety. And in Dearth v. Holder, 641 F.3d 499, 500-501 (D.C. Cir. 2011), the District of Columbia Circuit Court also upheld a federal law requiring a gun purchaser to be a U.S. resident.
  2. 554 U.S. 570, 626 (2008).
  3. Without Supreme Court precedent on this issue, the Palmer decision relied heavily on a radical and extreme 2-1 decision by the Ninth Circuit in Peruta v. County of San Diego, 742 F.3d 1144 (9th Cir. 2014). In Peruta, a panel of the Ninth Circuit Court of Appeals considered whether a person’s generalized desire to carry a gun in public for self-defense qualifies as “good cause” for the issuance of concealed carry permits. San Diego’s policy was not to issue concealed carry permits unless the applicant could demonstrate a particularized need beyond a generalized desire for self-defense. The divided panel held that San Diego’s application of the good cause requirement violated the Second Amendment. The State of California has sought to intervene in the case and requested en banc review from a full Ninth Circuit panel of judges, which may result in the overturning of the original decision. Additionally, the Palmer court based its decision on Moore v. Madigan 708 F.3d 901, 903 (7th Cir. Ill. 2013).
  4. 708 F.3d 901, 903 (7th Cir. Ill. 2013).

New California laws prohibit the open carrying of unloaded rifles and shotguns and protect domestic violence victims

California has a history of enacting some of the strongest gun laws in the nation. This year, Governor Brown signed two new measures to improve upon the state’s laws by helping to protect Californians from gun violence in public and in their homes. On September 28th, the governor signed AB 1527. The new law prohibits the open carrying of unloaded rifles and shotguns in public.  After a similar measure banning the open carrying of unloaded handguns was enacted last year, members of the so-called “open carry movement” responded by openly carrying rifles and shotguns at shopping malls, beach areas and other crowded public places.  This activity greatly alarmed the public and law enforcement statewide, resulting in the new measure.  The open carrying of all firearms is now prohibited in public places in California. The Law Center supported both the handgun and long gun open carry bans.

One day later, Governor Brown signed SB 1433, which will help disarm domestic abusers.  This law will require certain courts that issue protective orders to cross-reference state firearm records to determine whether a domestic abuser owns a firearm. If records indicate that a batterer is also a gun owner, law enforcement must request that the firearms be relinquished when serving the protective order. The Law Center supported this measure. Abused women are five times more likely to be killed by their abusers if an abuser owns a firearm. Strong procedures to facilitate the relinquishment of firearms by domestic abusers are absolutely critical.

Want to see more success stories? You can find them here.

Law Center Files Briefs in Significant Second Amendment Cases

As courts across the country hear Second Amendment challenges against important state gun laws, the Law Center 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 Law Center 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.

Lost & Stolen Reporting Bill Passes the California Senate

Yesterday, our priority bill to combat illegal gun trafficking and keep guns out of the wrong hands passed the California State Senate by a vote of 23-14.  Co-sponsored by the Law Center, SB 1366 (DeSaulnier) would require gun owners to alert local law enforcement when their firearms are lost or stolen, providing law enforcement with a much-needed tool to curb gun trafficking. SB 1366 now proceeds to the Assembly. Continue reading

Success Story: California Enacts Three Strong Gun Laws

Three important legislative victories were won in California in October 2011:

LONG GUN RECORDS

WHAT HAPPENED?
Thanks to an irresponsible law pushed through by the gun lobby many years ago, the California Department of Justice has been forced to destroy long gun sales records. This requirement has hampered law enforcement efforts to investigate gun crimes and disarm dangerous criminals. The requirement to destroy long gun records was repealed by LCAV-sponsored bill AB 809 (Feuer).

HOW SAFETY WINS
Long gun sales records will now be maintained in a database, like handgun sales records, and will provide a useful tool for law enforcement. Sales records contain important information about a firearm, who purchased it, and who sold it.  This information is critical to law enforcement charged with tracing the ownership of firearms recovered in crimes.

BANNING OPEN CARRY

WHAT HAPPENED?
After members of California’s open carry movement began staging public gatherings at which groups of gun owners carried unloaded handguns openly in public, Californians became alarmed. The California Police Chiefs Association, concerned about the risk to public safety, sponsored AB 144 (Portantino). The newly enacted law bans open carrying of unloaded handguns in a public place or on a public street.

HOW SAFETY WINS
Openly carrying handguns in public — intimidating behavior that puts the public at risk — is no longer permitted in California.

FUNDING TO DISARM PROHIBITED PERSONS

WHAT HAPPENED?
The California Department of Justice (“DOJ”) is tasked with disarming persons who are prohibited from possessing a firearm. SB 819 (Leno), allows DOJ to pay for this effort by using funds generated when firearms are sold.

HOW SAFETY WINS
This will greatly enhance DOJ’s ability to take guns out of the hands of convicted felons, domestic abusers and the mentally ill. DOJ has already identified over 18,000 individuals in California who are recorded owners of handguns and also legally prohibited from possessing firearms.  This additional funding will help DOJ take action to disarm these individuals.

Major Victories in California: Governor Brown Signs Three Crucial Bills to Prevent Gun Violence!

The Law Center applauds California Governor Jerry Brown for signing three important pieces of legislation to help keep communities across California safe from gun violence. Governor Brown signed:

  • AB 809 (Feuer), co-sponsored by the Law Center, which will help law enforcement solve and prevent gun crimes by requiring the California Department of Justice to retain copies of sales records for rifles and shotguns, as it already does for handguns;
  • AB 144 (Portantino), which will prohibit the open carrying of unloaded handguns in public places statewide; and
  • SB 819 (Leno), which will enable the Department of Justice to use firearm sales fees to fund programs to disarm convicted criminals and the mentally ill

The governor’s signing of these three bills is a major victory for public safety in California. We commend Assemblymember Feuer, Assemblymember Portantino, and Senator Leno for their outstanding leadership on these critical issues, and we are grateful for the tireless efforts of our coalition partners statewide.

We also thank you, our members and supporters, for your calls to the Governor urging him to sign AB 809. Your voice makes a difference!

Your support helps ensure that California continues to lead the nation in strong laws to prevent gun violence.

California Legislature Adopts the Law Center’s Critical -Supported Bills

The Law Center is pleased to report overwhelming success in the California Legislature this year, with four important bills now headed to Governor Jerry Brown’s desk. Our co-sponsored bill AB 809 (Feuer) would help law enforcement solve gun crimes and protect public safety by requiring the Department of Justice to retain copies of sales records for rifles and shotguns, as it does now for handgun records.

In addition:

    • AB 144 (Portantino) would prohibit the open carrying of unloaded handguns in public places statewide;
    • SB 819 (Leno) would enable the California Department of Justice to use firearm sales fees to fund programs to disarm convicted criminals and the mentally ill; and
    • SB 427 (De León) would enhance the state’s 2009 handgun ammunition recordkeeping law.

Your support enables us to provide critical technical expertise and advocacy in support of these and other important measures. By championing innovative legislation like the bills above, the Law Center and our coalition partners statewide are working to ensure that California’s gun laws remain the best in the nation.The Law Center’s Summary of 2011 California Firearms Legislation has more information about all of the firearm bills considered by the state legislature this year.

Bill Banning Open Carry of Handguns Passes California Assembly

Yesterday, the Law Center’s-supported bill AB 144 (Portantino) overwhelmingly passed the California Assembly. The bill would prohibit the open carrying of unloaded handguns in public places, and has received support from law enforcement statewide. Open carrying intimidates the public, wastes law enforcement resources, and increases the risk of injury and death due to the accidental or intentional use of firearms.

AB 144 now proceeds to the State Senate. For more on California firearms legislation, read our Summary of 2011 California Firearms Legislation.

Federal Court Rejects Second Amendment Challenge to Concealed Handgun Licensing Law

In another victory yesterday, the U.S. District Court for the Eastern District of California upheld Yolo County’s application of California’s concealed carry licensing law, which requires an applicant for a license to demonstrate “good cause.”

In Richards v. Prieto, the district court soundly rejected the plaintiffs’ interpretation of the U.S. Supreme Court’s decision in District of Columbia v. Heller, stating that “Heller cannot be read to invalidate Yolo County’s concealed weapon policy, as the Second Amendment does not create a fundamental right to carry a concealed weapon in public.” The court concluded that “regulating concealed firearms is an essential part of Yolo County’s efforts to maintain public safety and prevent both gun-related crime and, most importantly, the death of its citizens.”

The Law Center congratulates Yolo County on this important ruling. The Law Center is proud to have supported the County during this litigation, providing technical expertise and support during the briefing process. Plaintiffs have appealed the Richards decision to the Ninth Circuit Court of Appeals and the Law Center expects to file an amicus brief in support of the County in those proceedings.

The Law Center Supported Bills Pass Assembly Public Safety Committee

On April 12, two extremely important firearms bills moved out of the California Assembly Public Safety Committee.

AB 809 (Feuer), co-sponsored by the Law Center, would delete a provision of state law that currently requires sales records for long guns (rifles and shotguns) to be destroyed after five days. Similar to last year’s AB 1810, the bill would direct the Department of Justice to retain these records indefinitely, as it currently does for handgun records. Retention of long gun records would help law enforcement agencies quickly identify the owners of crime guns, and help them get firearms out of the hands of dangerous felons, domestic abusers, and the mentally ill. It would also help law enforcement be forewarned about the presence of long guns at private residences when responding to emergency calls.

AB 144 (Portantino), which would prohibit the open carrying of unloaded handguns in public places, also passed the Assembly Public Safety Committee. Current law does not prohibit the open carrying of unloaded firearms, even if an individual is also carrying ammunition. Open carrying intimidates the public, wastes law enforcement resources, and creates opportunities for injury and death due to the accidental or intentional use of firearms.

Both bills now proceed to the Assembly Appropriations Committee. For more information about all of the firearms bills under consideration in California this year, please visit our Summary of 2011 California Firearms Legislation.