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

supremecourttwilight

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.

In the Thick of It: 2016’s Busy Legislative Cycle

georgia-capitol-582

Across the country, new gun legislation is being proposed at a steady pace, and our attorneys are hard at work, writing model laws, educating lawmakers and the public on smart gun laws, and tracking these bills as they wind their way through the legislative system. Last year, we tracked more than 1,300 bills and expect this year to be another busy one for smart gun laws at the state level—not to mention the ballot initiatives that will enable voters to enact lifesaving smart gun laws this November. For a full analysis of this cycle’s firearms legislation, visit our biweekly publication Gun Law Trendwatch.

We’ve started the year with critical victories in key states:

  • In Georgia, Governor Nathan Deal vetoed a deadly bill that would have allowed anyone over 21 to carry a concealed, loaded weapon on college campuses, which would have increased the opportunity for violent shootings.
  • In Nebraska, lawmakers stopped progress on a preemption bill that would have prevented municipalities from enacting lifesaving local laws, like ones that keep guns away from domestic violence shelters and prevent juvenile gang members and the dangerously mentally ill from obtaining deadly weapons.
  • In New Mexico, lawmakers passed powerful, bipartisan legislation to strengthen that state’s background check system by requiring state courts to report mental health records to the National Instant Criminal Background Check System (NICS). Closing this gap in the background checks law will help keep guns from falling into the wrong hands.
  • In Florida, lawmakers stopped progress on an open carry bill, which would have allowed 1.5 million people with concealed weapons permits to openly carry handguns in the Sunshine State.

The most exciting advances for smart gun laws still lie ahead—this November, voters in Maine and Nevada will see initiatives for universal background checks on their ballots. And signatures were recently turned in for two more ballot initiatives: one for Washington State to adopt a gun violence protective order (GVPO) law and another in California to support the Safety for All Act, sponsored by Lt. Governor Gavin Newsom.

We’re also keeping an eye on some extreme examples of gun lobby–sponsored legislation that pose a significant risk to public safety, including an Arizona bill to permit guns in government buildings and a bill in Oklahoma to allow people to carry guns in public without a permit, a top priority in the gun lobby’s deadly agenda.

Our legal experts stand on the front lines of the fight for smart gun laws that save lives—our attorneys track and analyze gun laws in all 50 states, file amicus briefs in critical Second Amendment cases across the country, and work with lawmakers and advocates to craft and promote legislation that will reduce gun violence and save lives. 2016 is shaping up to be another remarkable year for gun safety.

To learn more about the gun laws moving through statehouses this year, check out Gun Law Trendwatch.

Two Mass Shootings Too Many

This week, our nation suffered yet again as news of two more mass shootings made headlines. On Saturday night, an Uber driver in Kalamazoo, MI, shot eight people, killing six, in a five-hour spree with victims in three locations. Chillingly, the shooter picked up fares between killings, and no connection to the victims has been found—a truly senseless tragedy that sent shockwaves through a community.

And just yesterday, a gunman in Hesston, KS, shot an assault rifle out of his car while driving and then opened fire at the manufacturing plant where he worked. Earlier in the afternoon, he’d been served with a protective order filed by his ex-girlfriend, alleging physical abuse and noting, “He is an alcoholic, violent, depressed, and it’s my belief that he is in need of medical and psychological help!”

Less than two hours after the order was served, the gunman had already killed three and injured 14 others before dying in a shootout with police.

Kansas

Kansas has yet to enact even the most basic common-sense gun laws—the state ranked last in our 2015 Gun Law State Scorecard. In fact, last year it went so far as to repeal a lifesaving permit-to-purchase requirement. We know the shooter was a convicted felon and prohibited from legally possessing a firearm, but this didn’t prevent him from having easy access to deadly weapons.

States like California and Massachusetts, with the help of the Law Center, have stepped up to protect their citizens with laws such as universal background checks, firearms relinquishment procedures, and gun violence restraining orders. And they’ve seen drops in their gun death rates as a result.

Lawmakers in Kansas can do more to stand up to the to the gun lobby’s deadly agenda and enact laws that protect their citizens—laws, such universal background checks, that enjoy wide public support. In light of yesterday’s shooting in Hesston, domestic violence protections would be a natural place to start. Laws to keep victims safe from armed abusers have failed to pass in Kansas in the past, but have recently been enacted by other conservative states such as Louisiana and South Carolina and are often passed by bipartisan coalitions.

We’re proud of the historic progress we’ve seen in states across the country, especially since the tragedy at Sandy Hook–but we know there’s still more work that must be done to keep Americans safe from gun violence. We won’t stop fighting for the smart gun laws that help keep deadly weapons away from dangerous people.

Learn more about gun laws in Michigan. 

Learn more about gun laws in Kansas.

See how your state stacks up when it comes to smart gun laws, visit the 2015 Gun Law State Scorecard.

Draper v. Healey: Supporting Massachusetts’ Life-Saving Handgun Design Safety Standards

© IAN CURCIO PHOTOGRAPHY 2012www.iancurcio.comian@iancurcio.com

Case Information: Draper v. Healey, No. 14-12471 (1st Cir. Brief Filed Jan. 29, 2016)

At Issue: This case involves a Second Amendment challenge to several handgun design safety regulations in Massachusetts, including a requirement that handguns be equipped with a “load indicator” so that users will know when a bullet is in the firing chamber. The challenged regulations were upheld in their entirety by the district court and the case is now on appeal with the First Circuit.

The Law Center’s Brief:  Our brief argues that the challenged regulations are “presumptively lawful” conditions on the commercial sale of firearms (a category expressly recognized by the U.S. Supreme Court), which fall entirely outside the scope of the Second Amendment. We also explain the importance of design safety standards when it comes to preventing the thousands of unintentional shootings that occur in America every single year. Even if the challenged regulations do burden the Second Amendment, they easily satisfy intermediate scrutiny as they are substantially related to the important government interest of protecting public safety by reducing unintentional shootings. 

Read the full text of our amicus brief here.

Watson v. Lynch: The Second Amendment Does Not Protect the Possession of Machine Guns

50caliber-cropped

Case Information: Watson v. Lynch, No. 15-2859 (3d Cir. Brief Filed Jan. 28, 2016)

At Issue: This case involves a Second Amendment challenge to federal laws that generally prohibit the private possession of machine guns manufactured after May 19, 1986. The district court ruled that the challenged laws do not violate the Second Amendment, and the case is now on appeal before the Third Circuit.

The Law Center’s Brief: Our brief focuses on the argument that machine guns are not protected firearms under the Second Amendment. We explain to the Third Circuit that machine guns are outside the scope of the Second Amendment for at least two distinct reasons: 1) machine guns easily qualify as “dangerous and unusual” weapons under Heller; and 2) the machine gun ban qualifies as a “longstanding” prohibition. Our brief establishes that these categories are best understood as categorical exceptions to the Second Amendment right and therefore fall outside of its scope entirely. Finally, the brief traces both the historical origins and ongoing success of machine gun regulation in America.

Read the full text of our amicus brief here.

Nebraska Nets First GVP Victory of 2016

Nebraska-HighRes

Today, Nebraska took steps to protect its communities from gun violence, scoring an early victory for smart gun laws at the state level. We’re proud to announce that lawmakers there stopped progress on a bill that attempts to eliminate cities’ ability to regulate for public safety by enacting their own municipal gun safety regulations.

The bill, LB 289, which would have preempted lifesaving local laws like ones that keep guns out of the hands of juvenile gang members, the dangerously mentally ill or away from domestic violence shelters.

We’re proud to have provided legal analysis and support to activists on the ground in Nebraska. Today’s news is a critical win for Nebraska–the state scores a D on our Gun Law State Scorecard, and we’re thrilled to see that lawmakers are taking a stand against the gun lobby’s deadly agenda.

For more information about Nebraska’s state gun laws, see our policy page.
To learn more about preemption laws, see our policy page.
For more information on how your state stacks up when it comes to smart gun laws, visit our 2015 Gun Law State Scorecard

Standing with the President for Smart Gun Laws

obama

Today, we stood with President Barack Obama as he issued a series of executive actions to curb the 117,000 shootings that take place every year in the United States. Our executive director, Robyn Thomas, joined gun violence prevention activists, survivors, and lawmakers at the White House for this remarkable announcement, and we’re thrilled to have been able to provide our unparalleled expertise on firearms laws and the Second Amendment to the administration to help enable this powerful action.

This announcement builds on the unprecedented momentum for smart gun laws in recent years, with 125 lifesaving laws passed in 41 states since the tragedy at Sandy Hook, and should serve as a rallying cry for more state and federal lawmakers to do everything they can to eliminate the uniquely American epidemic of gun violence.

The president said, “The United States of America is not the only country on Earth with violent or dangerous people. We are not inherently more prone to violence. But we are the only advanced country on Earth that sees this kind of mass violence erupt with this kind of frequency.”

This executive action will make Americans safer by directly addressing gun violence and improving procedures in four key areas:

  • Expanding and improving background checks—By clarifying what it means to be “engaged in the business” of selling guns, the administration will narrow the loophole that allows many private sales of firearms to occur without a background check. The President will also order improvements to the National Instant Criminal Background Checks System (NICS) to make the system more accurate, up-to-date, and efficient.
  • Making communities safer from gun violence—The White House announced that the administration will request additional resources for ATF, require reporting of lost and stolen firearms, and expand domestic violence outreach efforts.
  • Increase mental health treatment and record reporting—The President has outlined improvements to the mental health care system that will increase access to treatment and encourage better reporting of relevant records to NICS.
  • Gun safety technology—The President will instruct the Department of Justice, the Department of Defense, and the Department of Homeland Security to research smart gun technology that will potentially save lives by making it more difficult for unauthorized users, such as a child, intruder, or suicidal relative, from firing a gun they should not have access to.

We know that today’s executive action will go far to save lives in America, but we’re still looking to congressional leadership to work harder for the 90 percent of Americans who want smarter, stronger gun laws to protect them from gunfire. We agree with the president’s assessment that “until we have a Congress that’s in line with the majority of Americans, there are actions within my legal authority that we can take to help reduce gun violence and save more lives–actions that protect our rights and our kids.” We’re thrilled President Obama took action on gun violence prevention today, but there’s still so much work to do–and we won’t stop until Americans across the country are safe from gunfire.

To learn more about gun laws in all 50 states, including which currently require private sale background checks and which do not, visit the Law Center’s 2015 Gun Law State Scorecard at gunlawscorecard.org

Bauer v. Harris: Defending $19 Fee Imposed on Firearm Sales in California

mulitpleguns-cropped2

Case Information: Bauer v. Harris, No. 15-15428 (9th Cir. Brief Filed Oct. 22, 2015)

At Issue: This case involves a Second Amendment challenge to the use of the $19 Dealer Record of Sale (“DROS”) fee — imposed by the State of California on the sale of all firearms — to fund the Armed Prohibited Persons System (APPS), which is used to disarm individuals who have previously purchased a firearm, but who have subsequently become prohibited from firearm possession because of a criminal conviction or other disqualifying event. The district court for the Eastern District of California upheld the DROS fee as a “presumptively lawful” condition placed on the commercial sale of firearms. The case in now on appeal before the Ninth Circuit.

The Law Center’s Brief:  The brief argues that the district court correctly determined that the use of the DROS fee to fund APPS does not violate the Second Amendment as it is a “presumptively lawful” condition on the commercial sale of firearms. Moreover, even if this use of the DROS fee were to burden Second Amendment rights, it is valid because it is substantially related to the important government interest of reducing gun crime and violence. Finally, the brief explains the important role played by the DROS fee and the APPS program in addressing gun violence and the unique success that California has had in reducing gun violence through comprehensive firearms regulation.

Read the full text of our amicus brief here.

Pena v. Lindley: Amicus Brief Defending California’s Unsafe Handgun Act

© IAN CURCIO PHOTOGRAPHY 2012www.iancurcio.comian@iancurcio.com

Case InformationPena v. Lindley,  No. 15-15449 (9th Cir. Brief Filed Sept. 28, 2015)

At Issue: This case presents a Second Amendment challenge to the California Unsafe Handgun Act (“UHA”), which requires that all handguns must meet certain safety requirements before they may be sold within the State. The district court from the Eastern District of California rejected this challenge, noting that the UHA is a regulation on the commercial sale of arms and is therefore a “presumptively lawful” regulation falling outside the scope of the Second Amendment. The case is now on appeal before the Ninth Circuit.

The Law Center’s Brief: The Law Center’s brief addresses the importance of the Unsafe Handgun Act in keeping cheap and poorly made handguns off of the streets in California. The brief argues that the district court correctly concluded that the UHA law falls outside the scope of the Second Amendment, as it merely places a condition on the commercial sale of handguns and does not act as a prohibition. In the alternative, even if the UHA does burden conduct protected by the Second Amendment, it easily passes constitutional review under intermediate scrutiny, which is the appropriate level of review in this context, because of the minimal burden that the UHA imposes on the right to possess a firearm in the home for self-defense.

Read the full text of our amicus brief here.

Wrenn v. District of Columbia: Joining with the Brady Center to Defend the District’s Concealed Carry Permitting System

Overlooking-DC

Case Information: Wrenn v. District of Columbia, No. 15-7057 (D.C. Cir. Brief Filed Sept. 3, 2015)

At Issue: This cases challenges the constitutionality of the District’s regulations regarding the issuance of concealed carry permits. Similar to California law, the District requires that a CCW applicant show a specific need for a permit and a general self-defense interest is not enough to meet this burden. These “may-issue” systems are in place in several states across the country and are associated with a reduction in crime, including aggravated assault. However, the district court found that these laws violate the Second Amendment and the case is now on appeal with the D.C. Circuit.

Our Amicus Brief: The Law Center joined an amicus brief coordinated by the Brady Center that defends the constitutionality of the District’s concealed carry regime and argues that this regime does not violate the Second Amendment. The brief also focuses on the relevant evidence provided by social science research and the perspective of law enforcement with respect to the regulation of concealed carry in public places. The brief argues that there is a strong policy justification for a concealed carry permitting regime that requires applicants to demonstrate an elevated level of need before a permit may be issued.