The Second Amendment Battleground:
Victories in the Courts and Why They Matter

Posted on July 31, 2012

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.

Download a PDF copy of The Second Amendment Battleground.

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.

Supreme Court Judge Richard Posner Quote Second Amendment

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.

The Outbreak of Second Amendment Lawsuits since Heller

Since the U.S. Supreme Court’s 2008 decision in District of Columbia v. Heller, courts across the country have been confronted with an onslaught of costly, time-consuming Second Amendment litigation. In addition to the hundreds of legal challenges raised by indicted and convicted criminals, the gun lobby has also initiated dozens of lawsuits against federal, state, and local governments.

Significant Second Amendment Challenges Have Been Filed Nationwide6

Second Amendment Cases in the US

The Volume of Second Amendment Litigation Clogging America’s Courts7

Since Heller, federal and state courts have issued over 600 decisions on Second Amendment challenges nationwide. This onslaught of litigation shows no signs of ending soon.

Increase in Second Amendment Cases in the US

Extreme Second Amendment Lawsuits are Failing in the Courts

The Supreme Court may have opened the floodgates to Second Amendment litigation with the Heller decision, but the majority’s opinion also made clear that the Amendment protects only a limited right. The Court directly stated that the Second Amendment does not protect a “right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose,”8 and listed several examples of presumptively constitutional regulations.9

Given the Court’s clear instruction that the right to possess a handgun in the home for self-defense is consistent with a variety of gun laws, it’s not surprising that lower courts have almost uniformly rejected Second Amendment arguments in hundreds of decisions in federal and state courts nationwide over the past four years.

What have been shocking are the extreme claims that gun lobby lawyers and criminal defendants are raising in their Second Amendment challenges. Courts have been confronted with challenges to a variety of critical public safety measures, including laws preventing dangerous persons from possessing guns, laws prohibiting military-style firearms, and laws limiting guns in public places.

Judge Richard Posner Supreme Court Second Amendment

The Supreme Court identified several examples of presumptively constitutional gun regulations.10    11

Despite the gun lobby’s rhetoric about “individual rights,” the breadth and scale of Second Amendment lawsuits filed over the past four years reveal the lobby’s true intent: to overturn all reasonable laws intended to prevent gun violence. So far, thankfully, most of the courts confronted with these important challenges since Heller have affirmed the continued vitality of smart gun laws. Still, the courts remain an active battleground over the meaning of the Second Amendment and the future of sensible gun laws in America.

 

Significant Issues Before the Courts

Should convicted domestic abusers be able to possess firearms?

Federal law prohibits anyone convicted of a misdemeanor crime of domestic violence from possessing a firearm. In United States v. Skoien, an individual who had been twice convicted of domestic violence was found in possession of three firearms.12 He challenged the law prohibiting domestic abusers from possessing guns as a violation of the Second Amendment.

“No matter how you slice [the] numbers,” the Seventh Circuit observed, “people convicted of domestic violence remain dangerous to their spouses and partners.”13 The court upheld the law at issue, noting the volume of data showing the role of guns in domestic violence and the “substantial benefits in keeping the most deadly weapons out of the hands of domestic abusers.”14

 

Domestic Violence and Guns

Laws preventing convicted abusers from accessing guns are critical because studies show that many domestic abusers continue to harm their victims.1516

Domestic Violence and Gun Laws

Domestic violence assaults involving a firearm are twelve times more likely to result in death.17

 
Should military-style assault weapons and large capacity ammunition magazines be available on the consumer market?

After the Heller decision, the District of Columbia adopted a set of strong new gun laws, including a measure prohibiting the possession of dangerous assault weapons and large capacity ammunition magazines – military-style devices commonly employed in mass shootings. In Heller II, plaintiffs argued that these laws were unconstitutional restrictions on their Second Amendment rights.18

The D.C. Circuit Court of Appeals rejected the plaintiffs’ argument, citing the District’s careful review of the evidence showing the dangers posed by assault weapons and large capacity magazines. The court found that the District had sufficiently established a “substantial relationship between the prohibition of both…and the objectives of protecting police officers and controlling crime.”19

 

Effectiveness of the Federal Assault Weapons Ban

The federal assault weapons ban, resulted in a marked decrease in the use of assault weapons in crime.20

Data on the Federal Assault Weapons Ban

Virginia State Police saw a clear decline in the percentage of crime guns
with large capacity magazines.2122

 
Should an individual be able to carry a hidden, loaded handgun in public without showing any compelling reason to carry a weapon?

Given the inherent dangers posed by guns in public, ten states, including New Jersey, grant law enforcement discretion in issuing permits to carry concealed handguns in public places.23 In Piszczatoski v. Filko, five plaintiffs who had been denied permits argued that the New Jersey law requiring an applicant to show a justifiable need to get a permit violated the Second Amendment.24

Like several other courts across the country, the federal district court upheld the New Jersey law, citing the state legislature’s “reasonable inference that given the obviously dangerous and deadly nature of handguns, requiring a showing of particularized need for a permit to carry one publicly serves the State’s interests in public safety.”25

 

Concealed Weapon Statistics

Individuals with concealed carry permits have killed at least 440 people nationwide since May 2007.26

Thirty-five states require law enforcement to issue concealed weapon permits to anyone who meets minimal requirements.27

 

 

Why Success in the Courts Matters

If the gun lobby expected to get rid of smart gun laws through an aggressive Second Amendment litigation campaign, it seriously miscalculated. Through their decisions, courts have repeatedly proven that laws to keep our communities safe from gun violence are consistent with the Second Amendment because they don’t prevent law-abiding people from possessing guns in the home for self-defense.

All too often, the Second Amendment is cited as a reason why our gun laws remain far too weak. If the Second Amendment is an obstacle, it’s a rhetorical impediment, not a legal one. As four years of post-Heller decisions show, legislators and activists should feel confident that a variety of smart laws, supported by a significant majority of the American public, are both constitutional and desperately needed.

Strong gun laws aren’t just constitutional. They’re also critical to reducing America’s gun violence epidemic.

Strong gun laws aren’t just constitutional. They’re also critical to reducing America’s gun violence epidemic.

 

  1. District of Columbia v. Heller, 554 U.S. 570 (2008). []
  2. United States v. Miller, 307 U.S. 174 (1939). []
  3. Richard A. Posner, In Defense of Looseness, The New Republic, Aug. 27, 2008. []
  4. McDonald v. City of Chicago, 130 S. Ct. 3020 (U.S. 2010). []
  5. Posner, supra note 3. []
  6. For more information about significant ongoing lawsuits nationwide, please read our Post-Heller Litigation Summary. []
  7. For more information about significant Second Amendment decisions since Heller, please read our Post-Heller Litigation Summary. []
  8. Heller, 554 U.S. at 626. []
  9. Id. at 626-27. []
  10. Id. []
  11. Id. at 627, 632. []
  12. United States v. Skoien, 614 F.3d 638 (7th Cir. 2010). []
  13. Id. at 644. []
  14. Id. []
  15. Melanie Shepard, Predicting Batterer Recidivism Five Years After Community Intervention, 7 J. Family Violence 3:167 (1992). []
  16. Carla Smith Stover, Domestic Violence Research, 20 J. Interpersonal Violence 448, 451 (2005). []
  17. Linda E. Saltzman, et al., Weapon Involvement and Injury Outcomes in Family and Intimate Assaults, 267 JAMA, 3043-3047 (1992). []
  18. District of Columbia v. Heller, 670 F.3d 1244 (D.C. Cir. 2011). []
  19. Id.at 1263. []
  20. Christopher S. Koper, An Updated Assessment of the Federal Assault Weapons Ban: Impacts on GunMarkets and Gun Violence, 1994-2003, Report to the National Institute of Justice, U.S. Department of Justice (June 2004) 49. []
  21. About the Project: The Hidden Life of Guns, Wash. Post, Jan. 22, 2011; David S. Fallis & James V. Grimaldi, Virginia data show drop in criminal firepower during assault gun ban, Wash. Post, Jan. 23, 2011. []
  22. Id. []
  23. For more information on these issues, see our publication Guns in Public Places. []
  24. Piszczatoski v. Filko, 2012 U.S. Dist. LEXIS 4293 (D.N.J. Jan. 12, 2012). []
  25. Id. at *62. The court also observed that the Second Amendment “is unique among all other constitutional rights…because it permits the user of a firearm to cause serious personal injury – including the ultimate injury, death – to other individuals, rightly or wrongly.” Id. at *3. []
  26. Violence Policy Center, Concealed Carry Killers. []
  27. For more information, see Guns in Public Places. []