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Firearms Related: Second Amendment Issues
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The Pennsylvania Supreme Court has held that the mere open or concealed carrying of a firearm, without more, could not be used by state and local law enforcement officers in the state as a reasonable suspicion of criminal conduct and thus justification for a stop and frisk of a gun owner. The defendant in this case was stopped and questioned solely because he was observed on a city camera carrying a firearm. The court stated that “government may not target and seize specific individuals without any particular suspicion of wrongdoing, then force them to prove that they are not committing crimes.” Mere possession of a concealed firearm, legal in the state for some persons, the court found, provides no basis for an investigative detention without further indications of illegal activity. “As a matter of law and common sense, a police officer observing an unknown individual can no more identify whether that individual has a license in his wallet than discern whether he is a criminal. Unless a police officer has prior knowledge that a specific individual is not permitted to carry a concealed firearm, and absent articulable facts supporting reasonable suspicion that a firearm is being used or intended to be used in a criminal manner, there simply is no justification for the conclusion that the mere possession of a firearm, where it lawfully may be carried, is alone suggestive of criminal activity,” the court stated. Commonwealth v. Hicks. #56-MAP-2017, 2019 Pa. Lexis 3064. A federal appeals court has rejected a Second Amendment constitutional challenge to a Massachusetts state statute, Mass. Gen. Laws ch. 140, 121, banning the sale, transfer, and possession of certain semiautomatic firearms defined as “assault weapons” and large-capacity magazines (LCMs). The plaintiffs argued that they had an “unfettered” Second Amendment right to possess the prohibited items in their homes for purposes of self-defense. The court rejected this claim, finding that intermediate scrutiny, rather than strict scrutiny, was the appropriate legal standard for Second Amendment rights infringement claims. The court then found that even if the prohibited items have some degree of protection under the Second Amendment and the Act in question implicates the core Second Amendment right of persons to bear arms in self-defense in their home, the law “minimally burdens” that right and withstands intermediate scrutiny. The law did not ban all semiautomatic weapons and magazines, but only banned specifically enumerated semiautomatic assault weapons, magazines of a particular capacity, and semiautomatic assault weapons that had certain combat-style features, which were not commonly used for home self-defense. Worman v. Healey, #18-1545, 922 F.3d 26 (1st Cir. 2019). An Illinois law governing the concealed carry of firearms in the state requires applicants for a concealed carry license to make a showing that they are not a clear and present danger to themselves or a threat to public safety. They must show that they have not, within the past five years, been a patient in a mental hospital, convicted of a violent misdemeanor or two or more DUIs under the influence of alcohol or drugs, or participated in a residential or court-ordered drug or alcohol treatment program. The standards are the same for both resident and non-resident applicants. A Second Amendment challenge was asserted by non-resident applicants. State police conduct an extensive background check for each applicant. During the five-year licensing period, state police check all resident licensees against the Illinois Criminal History Record Inquiry and Department of Human Services mental health system daily. The law also mandates that physicians, law enforcement officials, and school administrators report persons suspected of posing a clear and present danger to themselves or others within 24 hours of that determination. Monitoring compliance of out-of-state residents is limited by Illinois’s inability to obtain complete, timely information about nonresidents, so Illinois issues concealed carry licenses only to nonresidents living in states with licensing standards substantially similar to Illinois standards. A federal appeals court upheld the statute against the nonresident applicant’s challenge as respecting the Second Amendment without offending the anti-discrimination principle at the heart of the U.S. Constitution’s Article IV’s Privileges and Immunities Clause, which states that “The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” The Privileges and Immunities Clause, the Court stated, did not compel Illinois to afford nonresidents firearm privileges on terms more favorable than afforded to its own citizens, and the statute did not discriminate against out-of-state residents in violation of equal protection. Culp v. Raoul, #17-2998, 921 F.3d (7th Cir. 2019). A lawsuit challenged the ATF’s recently adopted rule reclassifying “bump-stock” devices under the National Firearms Act as prohibited machine guns. The rule was proposed and then adopted following a multi-casualty shooting in Las Vegas in October 2017 in which the shooter used a bump-stock-enhanced semiautomatic weapons to kill 58 people and wound hundreds. A “bump stock” is a device that replaces the standard stationary stock of a semiautomatic rifle—the part of the rifle that typically rests against the shooter’s shoulder—with a non-stationary, sliding stock that allows the shooter to rapidly increase the rate of fire, approximating that of an automatic weapon. A federal appeals court upheld the denial of a requested preliminary injunction to halt the rule’s effective date. The bump-stock rule was a legislative rule that sets forth a “permissible interpretation” of the statute's ambiguous definition of "machine gun" and therefore merited the court's deference. It was not arbitrary in applying the definition of "machine gun" to bump stocks and the ATF articulated a satisfactory explanation for the rule. The U.S. Supreme Court subsequently denied a stay in the case, allowing the rule to go into effect. Guedes v. ATF, #19-5042, 2019 U.S. App. Lexis 9455, 2019 WL 1430505 (D.C. Cir.), stay denied, 2019 U.S. Lexis 2483 2019 WL 1497186. An Illinois man was charged with the misdemeanor unlawful use of weapons after he was found carrying a stun gun in his jacket pocket while in his car on a public street. A second man was charged with the same offense for carrying a stun gun in his backpack in a forest preserve, a public place. The state of Illinois does not make a concealed carry permit available for stun guns. Both men moved to dismiss the charges, arguing that the law operated as a complete ban on the carrying of stun guns and Tasers in public and was, therefore, facially unconstitutional under the Second Amendment. The Illinois Supreme Court agreed. Stun guns and Tasers are “bearable arms” under the Second Amendment and may not be subjected to a categorical ban, the court held. People v. Webb, 2019 IL 122951, 2019 Ill. Lexis 439. A federal appeals court upheld the dismissal of a man’s action seeking to enjoin the enforcement of 18 U.S.C. 922(g)(1), which prohibits anyone convicted of a crime punishable by imprisonment for a term exceeding one year from owning firearms for life. He claimed that, as applied to him, it violated the Second Amendment because he posed no heightened risk of gun violence. He had been convicted as a felon for falsifying his income on mortgage applications twenty-seven years before. The court held that, in this as applied challenge, the plaintiff failed to show facts about his conviction that distinguished him from other convicted felons encompassed by the section 922(g)(1) prohibition. Felons, the court commented, are not “among the law-abiding, responsible citizens” entitled to the protections of the Second Amendment. Medina v. Whitaker, #17-5248, 2019 U.S. App. Lexis1681 (D.C. Cir.). A federal appeals court upheld a man’s conviction for possessing a firearm while being an alien unlawfully in the United States. The court assumed, without deciding, that unlawful aliens in the United States held some degree of rights under the Second Amendment and held that 18 U.S.C. 922(g)(5) is constitutional under intermediate scrutiny. The court ruled that the government’s interests in controlling crime and ensuring public safety are promoted by keeping firearms out of the hands of unlawful aliens—who are subject to removal, are difficult to monitor due to an inherent incentive to falsify information and evade law enforcement, and have already shown that they are unable or unwilling to conform their conduct to the laws of this country. United States v. Torres, #15-10492, 2019 U.S. App. Lexis 514 (9th Cir.). |
The state of New Jersey passed a law limiting the amount of ammunition that may be held in a single firearm magazine to no more than 10 rounds, N.J. Stat. 2C:39-1(y), 2C:39-3(j). Rejecting a Second Amendment challenge as well as challenges citing the Fifth Amendment’s Takings Clause, and the Fourteenth Amendment’s Equal Protection Clause, a federal appeals court held that the law reasonably fits the state’s interest in public safety and does not unconstitutionally burden the Second Amendment’s right to self-defense in the home. The law does not require gun owners to surrender their magazines but instead allows them to retain modified magazines or register firearms that have magazines that cannot be modified. Because retired law enforcement officers have training and experience that makes them different from ordinary citizens, the law’s exemption that permits them to possess magazines that can hold more than 10 rounds does not violate the Equal Protection Clause. Association of New Jersey Rifle and Pistol Clubs, Inc. v. Attorney General New Jersey, #18-3170, 2018 U.S. App. Lexis 34380 (3rd Cir.).
A federal appeals court upheld a ruling that rejected claims that the Massachusetts firearms licensing statute, as implemented in the communities of Boston and Brookline, violates the Second Amendment, ruling that the statute bears a substantial relationship to important governmental interests, such as promoting public safety and crime prevention and did not offend the plaintiffs’ Second Amendment rights. The plaintiffs had sought and received licenses to carry firearms in public, but the licenses allowed them to carry firearms only in relation to certain specified activities, denying them the right to carry firearms more generally, including simply for general self-defense. “In the last analysis, the plaintiffs simply do not have the right ‘to carry arms for any sort of confrontation’ or ‘for whatever purpose’ they may choose,” the court stated. The core right protected by the Second Amendment was the right of “law-abiding, responsible citizens to use arms in defense of hearth and home,” but public carriage of firearms for self-defense “fell outside the perimeter of this core right.” Applying intermediate scrutiny, the court held, the restriction of the right to carry a firearm in public for self-defense withstood a Second Amendment challenge. Under the statute, a license to carry may be granted to those with “good reason to fear injury,” or for other reasons, such as sport or target practice. “The applicant must identify a specific need, that is, a need above and beyond a generalized desire to be safe.” Gould v. Morgan, #17-2202, 2018 U.S. App. Lexis 31129 (1st Cir.).
A federal appeals court upheld summary judgment for the state of California in a lawsuit challenging three provisions of the state Unsafe Handgun Act (UHA). That law requires that new models of handguns meet certain criteria, and be listed on a handgun roster, before they may be offered for sale. Assuming that the UHA implicated purchasers’ rights to bear arms under the Second Amendment, the court ruled that the UHA passed constitutional muster applying intermediate scrutiny. It held that the law only regulates commercial sales, not possession, and did so in a way that did not impose a substantial burden on purchasers. The court also held that the requirements for a chamber load indicator and a magazine detachment mechanism reasonably fit with the state’s interest in public safety. The state also met its burden of showing that the microstamping requirement (mandating that new handguns stamp microscopically the handgun’s make, model, and serial number onto each fired shell casing) was reasonably tailored to address the substantial problem of untraceable bullets at crime scenes and the value of a reasonable means of identification. Pena v. Lindley, #15-15449, 898 F.3d 969 (9th Cir. 2018).
A federal appeals court upheld the dismissal of an equal protection challenge to California’s 2015 amendment, Senate Bill 707, to its Gun-Free School Zone Act. The Amendment preserved the retired officer exception for firearm possession on school grounds, as well as within school zones, but prohibited concealed carry weapon (CCW) holders from possessing guns on school grounds. The court held that, even assuming that retired peace officers and CCW permit holders were similarly situated, SB 707 did not violate the Equal Protection Clause, given the applicable level of scrutiny. Applying “rational basis” review, the panel held that SB 707 implicates neither a suspect classification nor a fundamental right. The court also rejected the plaintiffs’ argument that SB 707 violated the Equal Protection Clause because it was enacted to favor a politically powerful group and to disfavor a politically-unpopular one. The plaintiffs failed to make any factual allegations to support their theory of impermissible animus. Gallinger v. Becerra, #16-56125, 898 F.3d 1012 (9th Cir. 2018).
A man in Hawaii filed a federal civil rights lawsuit claiming that the defendants violated his Second Amendment right to carry a loaded firearm in public for self-defense by denying his application for a firearms license. A federal appeals court ruled that, while the concealed carry of firearms fell outside Second Amendment protection, the Second Amendment includes a right to carry a firearm openly in public for self-defense. Therefore, a state statute restricted the plaintiff in exercising that right and thus burdened conduct protected by the Second Amendment. The appeals court panel held that Hawaii's limitation on the open carry of firearms to those engaged in the protection of life and property violated the core of the Second Amendment and was void “under any level of scrutiny.” It stated that restricting open carry to those whose jobs entail protecting life or property necessarily restricts open carry to a small and insulated subset of law-abiding citizens, and the typical, law-abiding citizen in the state was entirely foreclosed from exercising the core individual Second Amendment right to bear arms for self-defense. Young v. Hawaii, #12-17808, 2018 U.S. App. Lexis 20525 (9th Cir.).
A Massachusetts state statute constituting an absolute prohibition against civilian possession of stun guns violates the Second Amendment to the United States Constitution. The highest court in Massachusetts issued the ruling in a case in which man was criminally charged with stun gun possession. The court overruled the trial court’s refusal to dismiss that charge and ordered that the motion be granted. Stun guns are “arms” within the protection of the Second Amendment and therefore may be regulated but not absolutely banned. Consequently, the absolute prohibition in state law that bars all civilians from possessing or carrying stun guns, even in their home, violates the Second Amendment, and the section of the law containing the prohibition in its current form is facially invalid. Ramirez v. Commonwealth, #SJC-12340, 479 Mass. 331, 2018 Mass. Lexis 237.
Under a provision of a New York City licensing scheme (Rule 5-23), an individual with a “premises license” for a handgun may remove the handgun from the designated premises only for specified purposes. A federal appeals court ruled that this did not violate the Second Amendment, the Commerce Clause, the fundamental right to travel, or the First Amendment. The court applied intermediate scrutiny and held that the burdens imposed by the Rule did not substantially affect the exercise of core Second Amendment rights, and the Rule contributed to an important state interest in public safety substantial enough to easily justify the insignificant and indirect costs it imposed on Second Amendment interests. New York State Rifle and Pistol Association v. City of New York, #15-638, 2018 U.S. App. Lexis 4513 (2nd Cir.).
A federal appeals court reversed a trial court injunction against the enforcement of federal laws that generally bar federally licensed firearms dealers from directly selling a handgun to a person who is not a resident of the state in which the license holder is located. Without deciding the issue, the appeals court assumed, for purposes of its decision, that strict rather intermediate scrutiny is applicable to claims that a law infringes on Second Amendment rights to bear arms. The court then ruled that the in-state sales restriction did not violate the Second Amendment. The restriction is narrowly tailored to assure that a license holder who actually makes a sale of a handgun to someone other than another licensee can reasonably be expected to know and comply with the laws of the state in which the sale occurs. The court also rejected equal protection arguments against the restriction. The in-state sales requirement does not discriminate against residents of any particular state. Instead, it imposes the same restrictions on sellers and purchasers of firearms in each state and the District of Columbia. Mance v. Sessions, #15-10311, 2018 U.S. App. Lexis 1279 (5th Cir.).
A federal appeals court upheld the dismissal of a federal civil rights lawsuit against a county claiming that it violated the Second Amendment rights of a businessman and his potential customers when it denied his application for conditional use permits to open a gun shop. The court held that a textual and historical analysis of the Second Amendment demonstrates that the Constitution does not confer a freestanding right on commercial proprietors to sell firearms. The plaintiff failed to plausibly allege that the county’s ordinance impeded any resident of the county who wishes to purchase a firearm from doing so, and thus he failed to state a claim for relief based on infringement of the Second Amendment rights of his potential customers. The court ruled that he could not state a Second Amendment claim based solely on the ordinance’s restriction on his ability to sell firearms. Teixeira v. County of Alameda, #13-17132, 873 F.3d 670 (9th Cir. en banc 2017).
D.C. residents filed a lawsuit challenging provisions of the District’s Code directing the police chief to issue regulations limiting licenses for the concealed carrying of handguns to those showing a “good reason” to fear injury to their person or property or any other proper reason for carrying a pistol. A federal appeals court ruled that the right of responsible citizens to carry firearms for personal self-defense beyond the home, subject to longstanding restrictions is at the “core” of the Second Amendment. These traditional limits include, for instance, licensing requirements, but not bans on carrying in urban areas such as D.C. or bans on carrying absent a special need for self-defense. The court found that the District's good-reason law is essentially a total ban on most D.C. residents’ right to carry a gun in the face of ordinary self-defense needs, where these residents are no more dangerous with a gun than the next law-abiding citizen. Therefore, the court could strike down the law apart from any particular balancing test. The court remanded the case with instructions to enter permanent injunctions against enforcement of the good-reason law. Wrenn v. District of Columbia, #16-7025, 2017 U.S. App. Lexis 13348 (D.C. Cir.).
A current resident of Maryland brought an as-applied Second Amendment challenge to Maryland's firearms regulatory scheme, arguing that the scheme is unconstitutional as applied to him. He was convicted of a felony in Virginia, but had his civil rights restored by the Governor of Virginia and his firearms rights restored by the Virginia courts. He sought to obtain a permit for a handgun and possess a long gun, both of which he is unable to do in Maryland absent a full pardon from the Governor of Virginia. Upholding the dismissal of his claim, a federal appeals court ruled that a state law felon cannot pass the first step of the United States v. Chester, #09-4084, 628 F.3d 673 (4th Cir. 2010) inquiry when bringing an as-applied challenge to a law disarming felons, unless that person has either received a pardon or the law forming the basis of conviction has been declared unconstitutional or otherwise unlawful. That two step inquiry is as follows:
“The first question is ‘whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment's guarantee.’ This historical inquiry seeks to determine whether the conduct at issue was understood to be within the scope of the right at the time of ratification. If it was not, then the challenged law is valid. If the challenged regulation burdens conduct that was within the scope of the Second Amendment as historically understood, then we move to the second step of applying an appropriate form of means-end scrutiny. Heller left open the issue of the standard of review, rejecting only rational-basis review. Accordingly, unless the conduct at issue is not protected by the Second Amendment at all, the Government bears the burden of justifying the constitutional validity of the law.”
The court further held that evidence of
rehabilitation, the likelihood of recidivism, and the passage of time may not
be considered at the first step of the Chester inquiry.
Therefore, the court concluded that plaintiff failed at step one of the Chester
analysis in the absence of a full pardon. Hamilton v. Pallozzi, #16-1222, 848
F.3d 614 (4th Cir. 2017).
A man
claimed that law enforcement officials violated his Second Amendment rights by
seizing ammunition and firearms from his home and then prosecuting him for
their possession. The lawsuit challenged the constitutionality of California’s
ten-year ban on such possession following a conviction for misdemeanor domestic
violence. A federal appeals court, noting that it had already, during a
previous case, United States v. Chovan, #11-50107, 735 F.3d 1127 (9th Cir.
2013), upheld a more restrictive federal lifetime ban on possession of firearms
and ammunition for those convicted of misdemeanor domestic violence crimes, saw
no reason not to also uphold the California ten-year ban. His arrest was also
based on probable cause, defeating a false arrest claim. Fortson v. L.A. City
Attorney's Office, #15-55497, 2017 U.S. App. Lexis 6029 (9th Cir.).
In a case
challenging the constitutionality under the Second Amendment of Maryland’s
Firearm Safety Act (FSA), a federal appeals court, ruling en banc, found that
the banned assault weapons and large-capacity (over 10 rounds) magazines are
not protected by the Second Amendment. The court majority held that it had no
power to extend Second Amendment protection to the “weapons of war” that the
U.S. Supreme Court decision in District of Columbia v. Heller, #07-290, 554
U.S. 570 (2008) decision “explicitly excluded” from such coverage. The court
majority also found it prudent to rule that — even if the banned assault
weapons and large-capacity magazines were somehow entitled to Second Amendment
protection — the trial court properly subjected the FSA to intermediate
scrutiny and correctly upheld it as constitutional under that standard of
review, despite a vacated appeals court panel decision that adopted strict
scrutiny as the appropriate standard for Second Amendment challenges to firearms
legislation. Four judges filed a dissenting opinion, arguing that strict
scrutiny was the appropriate Second Amendment standard and that the Second
Amendment protects semiautomatic rifles and large capacity ammunition
magazines. Kolbe v. Hogan, Jr., #14-1945, 813 F.3d
160 (4th Cir. 2017).
In 2010 in McDonald v. City
of Chicago, #08-1521, 561 U.S. 742 (2010), the
U.S. Supreme Court invalidated a Chicago ordinance prohibiting possession of
handguns. Chicago then established rules that required one hour of range
training as a prerequisite to obtaining a permit to possess a handgun, but
banned shooting ranges by zoning throughout the city. In 2011, the Seventh
Circuit held that the ban was incompatible with the Second Amendment. The city
replaced it with regulations governing shooting ranges. The trial court
invalidated a restriction allowing gun ranges only as special uses in
manufacturing districts, but upheld a restriction prohibiting gun ranges within
100 feet of another range or within 500 feet of a residential district, school,
place of worship, and multiple other uses, and a provision barring anyone under
age 18 from entering a shooting range. A federal appeals court has now
invalidated all three restrictions. The manufacturing-district classification
and the distancing rule together rendered only 2.2% of the city’s total acreage
even theoretically available for a range, and no single shooting range yet
exists, which severely limited Chicagoans’ Second Amendment right to maintain
proficiency in firearm use. The court rejected the city’s “speculative claims
of harm to public health and safety” as inadequate to survive the heightened
scrutiny that applies to burdens on Second Amendment rights. The city also failed
to adequately justify the “overbroad” age restriction; its own witness agreed
that youth firearm instruction was prudent and can be conducted in a safe
manner. Ezell v. City of Chicago, #14-3312, 2017 U.S. App. Lexis 900 (7th Cir.).
The plaintiffs mounted a
Second Amendment challenge to a California state law imposing a ten-day waiting
period for all lawful firearm purchases. They challenged the application of the
full ten-day waiting period to those purchasers who have previously purchased a
firearm or have a permit to carry a concealed weapon and who clear a background
check in less than ten days. Applying intermediate scrutiny analysis, the
federal appeals court ruled that that the law does not violate Second
Amendment rights because the ten-day wait is a reasonable precaution for the
purchase of a second or third weapon, as well as for a first purchase.
The burden of the 10-day wait period on subsequent purchasers who passed the
background check in less than 10 days was very small, the court stated, and
there was nothing new in having to wait for delivery of a weapon. Additionally,
the waiting period provided time not only for a background check, but also for
a cooling-off period to deter violence resulting from impulsive purchases of
firearms. Silvester v. Harris, #14-16840, 843 F.3d
816 (9th Cir.).
A man sent papers
to a state representative accusing him of violating the Constitution and
allegedly threatening violence. He said "Now you know why so many of you
people or going to be shot because you're too selfish too understand the
truth." There were hand-drawn crosshairs on the document. He visited the
representative's office and said that he was "ready to start shooting
people." The state police were informed of this and determined that he was
licensed to own firearms and had some registered. An officer came to the
conclusion that his "mental condition is of such a nature that it poses a
clear and present danger" that he thought was sufficient under state law
to justify summary revocation of firearms rights. Police removed his weapons
and told him he could apply to have his firearms card reinstated, encouraging
him to submit three character references and a psychologist's report with any
such request. Six months later, he did so, submitting three references and a
psychologist's report concluding that he was "all bark and no bite."
Eventually, the firearms card was reinstated without a hearing and the firearms
were returned. A federal appeals court rejected the plaintiff's argument that
his Second Amendment and due process rights were violated. Summary revocation,
with hearing to follow, is proper in the revocation of firearms rights when
delay poses unacceptable risks. In this case, the officer was entitled to
qualified immunity on the delay theory, because courts have yet to determine
how quickly governmental bodies must act when the right to keep firearms is at
stake. Rhein v. Coffman, #15-2867, 825 F.3d 823 (7th Cir. 2016).
A Massachusetts state law
prohibiting a handgun purveyor to transfer to a customer any handgun “which
does not contain a load indicator or magazine safety disconnect" did not
violate the Second Amendment and did not violate due process. The state
Attorney General informed firearms dealers and consumers that Glock, Inc.’s
third and fourth generation pistols lacked an adequate load indicator, and thus
could not be transferred. The statute was not unenforceably vague in violation
of due process, as its definition of "load indicator" as a device
which plainly indicated that a cartridge was in the firing chamber provided
anyone of ordinary intelligence fair notice that what was required was a
readily perceptible signal that a gun was loaded. Draper v. Healey, #15-1429,
2016 U.S. App. Lexis 11003 (1st Cir.).
The plaintiffs applied for concealed-carry
permits under an Illinois permit system adopted after a Seventh Circuit ruling
held that states must permit law-abiding and mentally healthy persons to carry
loaded weapons in public. They were rejected because law enforcement agencies
objected. They were not informed of who in particular objected or why. After a
lawsuit was filed, Illinois changed its regulations to require that such
information be given and that the applicant be allowed to respond. The trial
court then rejected plaintiffs’ claims, stating that the plaintiffs’ proper
recourse was to apply for licenses under the new rules. None of the plaintiffs
filed another application. A federal appeals court rejected a
"facial" challenge to the law, reasoning that a court should not
easily assume that a state would "choose the unconstitutional path"
when a valid one was open. The court rejected a challenge to the very existence
of a permit requirement as a "prior restraint," reasoning that the
state was entitled to check on an applicant's mental health and record of
convictions close to the date they propose to go armed on the streets. The
appeals court did, however, uphold the statute's placing of the burden on the
state to justify any denial of a permit, using a preponderance of the evidence
standard. Berron v. Ill. Concealed Carry Licensing Review Bd., #15-2404, 825
F.3d 843 (7th Cir. 2016).
A man, as trustee of his own revocable trust,
submitted an application to the ATF to manufacture a machine gun. When it was
denied, he sued, challenging the constitutionality under the Second Amendment
of a 1986 federal statute making possession of a machine gun unlawful. A
federal appeals court concluded that machine guns are not protected by the
Second Amendment because they are dangerous and "unusual," and
therefore not in common use. The court also ruled that the plaintiff had
standing to pursue his claim because trusts were "persons" barred
from possessing machine guns under the statute. Hollis v. Lynch, #15-10803,
2016 U.S. App. Lexis 12099 (5th Cir.).
Three persons seeking to open a gun shop in a
California county challenged a county ordinance requiring that such a business
not be within 500 feet of a residentially zoned district. A federal appeals
court held that the right to purchase and sell firearms is part and parcel of
the historically recognized fundamental right to keep and bear arms protected
by the Second Amendment. The ordinance's potential interference with that right
was therefore a proper basis for a Second Amendment challenge, so the trial
court's dismissal for failure to state a claim was unwarranted. Burdens on
Second Amendment rights are subject to heightened scrutiny, and the county
failed to carry its burden because it never justified that there was a reasonable
fit between the challenged regulation and its asserted objective, In
particular, the county failed to support its claim that gun stores acted as a
"magnet for crime." Teixeira v. County of Alameda, #13-17132, 2016
U.S. App. Lexis 8925 (9th Cir.).
The highest court in Massachusetts upheld a state
statute prohibiting the private possession of stun guns against a
constitutional Second Amendment challenge, on the basis that stun guns were not
in common use at the time of the Second Amendment's enactment and therefore
were not protected by it. The court also reasoned that stun guns were
"dangerous per se at common law and unusual" because they were a
modern invention, and that "nothing in the record to suggest that [stun
guns] are readily adaptable to use in the military." The U.S. Supreme
Court vacated this decision, stating that "the Second Amendment extends,
prima facie, to all instruments that constitute bearable arms, even those that
were not in existence at the time of the founding," and that it had
previously rejected the argument that "only those weapons useful in
warfare are protected" by the Second Amendment. The case involved a woman
with an abusive boyfriend who found that protective orders she obtained proved
futile so she accepted a stun gun from a friend to protect herself and when she
brandished it, the ex-boyfriend got scared and left her alone. She was then
convicted of violating the state law that barred private possession of stun
guns, Caetano v. Massachusetts, #14-10078,194 L. Ed. 2d 99, 2016 U.S. Lexis
1862.
A number of plaintiffs filed suit raising Second
Amendment challenges to a Maryland state statute barring law-abiding citizens
with the exception of law enforcement officers from possessing the vast
majority of semi-automatic rifles which the plaintiffs claimed were commonly
kept by several million Americans for defending their families and homes and
other lawful purposes. The lawsuit also challenged a ban on possession of
detachable ammunition magazines holding more than 10 rounds. A federal appeals
court held that Second Amendment rights were implicated, that the burden on
such rights was substantial, and that strict scrutiny was the appropriate
standard for review of the Second Amendment issues. The appeals court therefore
vacated the dismissal of these claims and ordered further proceedings to apply
the strict scrutiny standard. The appeals court did uphold, however, the trial
court's rejection of the plaintiffs' equal protection challenges to the law
enforcement exception to the statute. Kolbe v. Hogan, Jr., #14-1945, 2016 U.S.
App. Lexis 1883 (4th Cir.). A rehearing en banc was subsequently granted on
March 4, 2016 in Stephen v. Kolbe, #14-1945, 2015 U.S. App. Lexis 4195 (Unpub.
4th Cir.).
The District of Columbia adopted a statute
requiring those seeking a license to carry concealed weapons to show a
"good reason" why the license should be issued. A federal trial judge
who was a visiting judge from the Northern District of New York issued a
preliminary injunction restraining enforcement of the "good cause"
standard. A federal appeals court, without reaching the merits, vacated the
order on jurisdictional grounds. While the visiting judge served under a
properly issued designation, that designation was limited to specific and
enumerated cases, and the appeals court concluded that the litigation over the
D.C. firearms legislation was not among those cases. Wrenn v. District of
Columbia, #15-7057, 808 F.3d 81(D.C. Cir. 2015).
A federal appeals court ruled that the core
provisions of New York and Connecticut state laws prohibiting possession of
semiautomatic assault weapons and large-capacity ammunition magazines did not
violate the Second Amendment right to keep and bear arms. The court applied
intermediate scrutiny to the claims and found that the laws upheld were
substantially related to public safety and crime reduction. It also held that
individual provisions challenged were not void for vagueness. It struck down,
however, new York's law regulating load limits and Connecticut's law
prohibiting the non-semiautomatic Remington 7615. New York State Rifle &
Pistol Ass’n v. Cuomo, #14-36, 2015 U.S. App. Lexis 18121 (2nd Cir.).
A federal appeals court upheld against
Second Amendment challenges, District of Columbia statutes that required basic
registration of long guns, a requirement that those registering firearms be
photographed and fingerprinted, and a requirement that those registering the
guns personally appear and pay a fee, as well as that they complete a firearms
safety and training course. It struck down, however, requirements that a person
registering a firearm bring it with them when registering, that they
re-register it every three years, that registration be conditioned on passing a
test of knowledge of D.C. firearms laws, and a prohibition on registering more
than one pistol per registrant during a 30 day period. Heller v. D.C.,
#14-7071, 2015 U.S. App. Lexis 16632 (D.C. Cir.).
An Illinois municipality passed an ordinance
prohibiting possession of defined "assault weapons" or
large-capacity magazines (able to accept over 10 rounds). In addition to
prohibiting AR-15s and AK-47s by name as "assault weapons," it also
included in the definition any semi-automatic gun that can accept a large-capacity
magazine and has: a pistol grip without a stock (for semi- automatic pistols,
the capacity to accept a magazine outside the pistol grip); a folding,
telescoping, or thumbhole stock; a grip for the non-trigger hand; a barrel
shroud; or a muzzle brake or compensator. A lawsuit sought to enjoin
enforcement of the ordinance as violating the Second Amendment, a claim the
trial court rejected. A federal appeals court upheld this result, commenting
that the rights guaranteed under the Second Amendment did not "imperil every
law regulating firearms." The court declined to decide what
"level" of scrutiny should be applied in Second Amendment claims.
Instead, the court concluded that whether the right to possess weapons should
be extended to the types of weapons at issue in the case was one that had to be
decided by the U.S. Supreme Court. For now, the court noted that, while the
weapons at issue could be used for self-defense, the ban left residents with
many alternative defense options, and that there was data indicating that
similar bans reduced the share of gun crimes involving assault weapons.
Friedman v. City of Highland Park, #14-3091, 784 F.3d 406 (7th Cir. 2015).
A couple were out walking
with their daughter, grandson, and a dog. The man carried a cell phone, holstered
on his hip, next to a semiautomatic handgun. a motorcyclist passing by stopped
to complain about the visible weapon, and after a heated argument, called 911.
The dispatcher stated that the weapon was legal in Ohio with a concealed carry
weapon permit. An officer was dispatched, and took possession of the man's
weapon. The officer threatened to arrest the man for inducing panic and placed
him in handcuffs. After the officer discovered that the man had a carry permit
for the weapon, he released him while citing him for failure to disclose
personal information, a charge later dropped. The man had produced his driver's
license, but told the officer to look up his carry permit. While the trial
court rejected First and Second Amendment charges against the officer on
summary judgment, it permitted Fourth Amendment and state law claims to go
forward. A federal appeals court upheld this result. It noted that the officer
had the right to approach the plaintiff and ask him questions, but that Ohio
law permitted the man, with his permit, to do exactly what he was doing, openly
carry his firearm. The officer had no basis for uncertainty abut the law, and
had no evidence that the man was dangerous. All that he saw was that the man
was armed, and legally so. There was no basis for reasonable suspicion of
inducing panic or that the man needed to be disarmed, and allowing stops in
these circumstances would effectively eliminate Fourth Amendment protection for
legally armed persons. The court noted that "Not only has the State made
open carry of a firearm legal, but it also does not require gun owners to
produce or even carry their licenses for inquiring officers." While the
officer also claimed that the man made a "furtive motion" towards his
weapon before being disarmed, that was disputed and was an issue of fact for a
jury. A second officer, who did not arrive on the scene until after the
plaintiff was already handcuffed and placed in the back of the first officer's
car, however, was entitled to qualified immunity, as he had not detained,
disarmed, or handcuffed the plaintiff. Northrup v. City of Toledo Police
Dep't., #14-4050, 2015 U.S. App. Lexis 7868, 2015 Fed. App. 0092P (6th Cir.).
A federal appeals
court, in a lawsuit claiming that California's concealed handgun laws violate
the Second Amendment right to bear arms, held that the right included an
ability to carry an operable firearm outside the home, and that carrying such
weapons, in or out of the home, was a central component of the right to bear
arms. A county's "good cause" requirement before a conceal carry
permit was issued violated the Second Amendment right to bear arms in
self-defense. The California scheme failed to allow the typical, law-abiding
citizen to bear arms in public for the lawful purpose of self-defense. The
contrary holdings of the Second, Third, andf Fourth Circuits were rejected. Peruta v. County of San
Diego, #10-56971, 2014 U.S. App. Lexis 2786 (9th Cir.).
A New Jersey law regulating the issuance of
permits to carry handguns in public places and limited them to those who could
demonstrate a "justifiable need" to carry a handgun for self-defense
did not violate the Second Amendment. Assuming, for the sake of argument, that
there was a Second Amendment right to carry guns outside the home, the
"justifiable need" standard was a "long-standing
regulation" entitled to a presumption of constitutionality. Even without
that presumption, it would withstand intermediate scrutiny and was reasonable
in light of the state's substantial, critical interest in public safety. The
evidence also showed that the state properly engaged in an individualized
consideration of each applicants circumstances and his or her objective need to
carry a gun in public. Drake v. Filko, #12-1150, 2013 U.S. App. Lexis 15635
(3rd Cir.).
State laws that allow New York City and Nassau
County to impose a licensing fee for residential handguns that exceeds the
amount of the allowable fee in all other parts of the state did not violate the
Second Amendment or equal protection. The current fee in New York City is $340,
while in the rest of the state it generally ranges from $3-$10. Kwong v.
Bloomberg, #12-1578, 2013 U.S. App. Lexis 13798 (2nd Cir.).
A Maryland state statute that restricts
eligibility for a permit to carry, wear, or transport a handgun in public on
having a "good and substantial reason" to do this did not violate the
constitutional right to bear arms guaranteed by the Second Amendment. It was in
keeping with a substantial governmental interest in protecting public safety
and preventing crime, which outweighed any implicated right of armed self
defense. Woollard v. Gallagher, #12-1437, 2013 U.S. App. Lexis 5617 (4th Cir.).
A federal appeals court has held that being able
to be granted a permit to carry a concealed weapon is not a right protected by
the Second Amendment. "In light of our nation's extensive
practice of restricting citizens' freedom to carry firearms in a concealed
manner, we hold that this activity does not fall within the scope of the Second
Amendment's protections. We reach the same conclusion with respect to [the
plaintiff's] claim under the Privileges and Immunities Clause, which is
coterminous with his right to travel claim." Peterson v. Martinez,
#11-1149, 2013 U.S. App. Lexis 3776 (10th Cir.).
A man in Massachusetts owned a handgun that was
kept loaded and unlocked in a bedroom table drawer on the second floor of his
house. He had a valid license for the gun. During an argument with his
roommate, she took the gun from the drawer and threw it into some bushes next
to a neighbor's house. When police discovered this and learned that the gun had
been loaded when thrown there, the gun owner was charged with violation of a
law that requires that a gun be in the immediate control of the authorized user
unless it is in a locked container or locked down with a safety device so that
only the authorized owner can use it. He argued that this law was
unconstitutional under the Second Amendment and violated his right to have a
handgun in his home for self-defense. The highest court in Massachusetts
rejected this argument, finding that it did not interfere with the ability of a
licensed gun owner to keep or carry a loaded firearm in his immediate control
for self defense. The law properly aimed at preventing those not licensed to
possess or carry firearms from gaining access to them. Commonwealth v. McGowan,
#SJC-11076, 2013 Mass. Lexis 13
Illinois gun owners, in two consolidated cases,
claimed that state laws broadly prohibiting carrying a gun ready to use
(loaded, immediately accessible and uncased), violated the Second Amendment.
The statute in question made exceptions for police, security personnel,
hunters, members of target shooting clubs, a person on his own property, in his
home, in his fixed place of business, or on the property of someone who has
permitted him to be there with a ready-to-use gun. Aside from those exceptions,
however, even an unloaded gun may not be carried in public unless carried
openly outside a vehicle in an unincorporated area and when ammunition is not
immediately accessible. Noting that the U.S. Supreme Court had not yet
addressed whether the Second Amendment created a right of self-defense outside
the home, the federal appeals court, by a 2-1 vote, found that the individual
right to bear arms implied a right to carry a loaded gun outside the home for
self-defense. Illinois failed to meet its burden of showing that its broad
restrictions on carrying weapons outside the home were justified by more than a
mere rational relationship to an increase in public safety. The statute was
declared unconstitutional and the lower courts were told to permanently enjoin
it. The appeals court gave the Illinois legislature a deadline of six months to
adopt a new statute regarding the carrying of firearms in public that would
comply with the court's reasoning. The court noted that Illinois has been, up
to now, the only state with no legal provisions for the issuance of conceal
carry permits to gun owners who are members of the general public. Moore v.
Madigan, #12-1269, 2012 U.S. App. Lexis 25264 (7th Cir.).
A federal appeals court held that the Second
Amendment does not guarantee an individual right to carry handguns outside the
home for self-defense. The court rejected challenges to the actions of
licensing officers in denying the plaintiffs concealed handgun licenses under a
state statute requiring that they show proper cause for the issuance of such a
license. In the alternative, the appeals court found that the requirement of
proper cause would be constitutional even if the carrying of a handgun outside
the home implicated the Second Amendment individual right to bear arms. The
court ruled that intermediate scrutiny was the appropriate legal standard for
laws that limit Second Amendment rights and should be upheld if they are
substantially related to achieving an important governmental interest. In this
instance, the proper cause requirement was justified by interests in public
safety and crime prevention. The state had not banned handgun possession, but
limited it to those who had an actual need to carry a weapon, which did not
violate the Second Amendment. Kachalsky v. County of Westchester, #11-3642, 701
F.3d 81 (2nd Cir. 2012).
A federal appeals court ruled that a federal
statute and accompanying regulations which barred federal licensed firearms
dealers from selling handguns to persons under the age of 21 did not violate
the Second Amendment right to bear arms. The fact that Congress imposed the age
restriction only on commercial arms sales did not violate the right of equal
protection of the law. National Rifle Association v. Bureau of Alcohol,
Tobacco, #11-10959, 2012 U.S. App. Lexis 22197 (5th Cir.).
A Tennessee state law allows holders of gun
permits to carry their handguns in a state-owned or operated public place,
provided that the barrel of the gun is less than a foot long. Relying on that
law, the holder of a permit slung his AK-47 pistol, which had an 11-1/2 inch
barrel across his chest, which bore camouflage, along with a 30-round clip, and
went for a walk through a state park. After this alarmed a number of other
people, a ranger in the park stopped him, ordered him to get on the ground, and
held him until a determination could be made that his weapon was legal. Doing
so did not violate the Fourth Amendment, as it was simply a legitimate
investigatory stop. The court also rejected an argument that the ranger's
actions violated the Second Amendment, since no court "has held that the
Second Amendment encompasses a right to bear arms in state parks." Embody
v. Ward, #11-5963, 695 F.3d 577 (6th Cir. 2012).
An ex-police officer had her firearms license
revoked shortly after she resigned from the department. Renewal was denied
because she checked no on a question as to whether she had resigned with
charges pending, and there had actually been an unresolved incident inquiry
pending. She sued, claiming that she had a Second Amendment right to the
license, which would allow her to carry a concealed handgun outside her home
for self-defense. The appeals court ruled that current Supreme Court case law
concerning a Second Amendment right to possess a handgun for self-defense
applies to the home and that "the government may regulate the carrying of
concealed weapons outside of the home." Revoking her firearms license on
the basis of her providing false information on the application for renewal did
not violate her rights. Hightower v. City of Boston, #11-2281, 2012 U.S. App.
Lexis 18445 (1st Cir.).
A federal law barring individuals from
transporting firearms into their state acquired in another state did not
violate the Second Amendment. The plaintiff argued that the combination of New
York's licensing statute, which made it difficult for him to purchase a handgun
in New York, with the federal prohibition on importing the weapon purchased in
Florida effectively denied him the right to own a handgun for self-defense. The
court rejected this argument, pointing out that the plaintiff could have, in
fact, applied for a New York permit, which provided him with an adequate
alternative means to acquire a gun for self-defense. United States v. DeCastro,
#10–3773, 682 F.3d 160 (2nd Cir. 2012).
Plaintiffs who wished to hold gun shows at a
county's fairgrounds challenged, as a violation of the Second Amendment, an
ordinance prohibiting possessing firearms on county property. The county's
subsequent interpretation of the ordinance as allowing gun shows on county
property, as long as the weapons were attached by a sturdy cable to a table or
other fixture, resolved any possible Second Amendment claims. Potential buyers
could, under these circumstances, physically inspect the firearms as long as
they were properly secured. Under the Second Amendment, there can be reasonable
conditions and qualifications on commercial gun sales. Nordyke v. King,
#07-15763, 681 F.3d 1041, (9th Cir. en banc. 2012)
During an arrest, officers seized a pistol owned
by the arrestee. The weapon was not returned after the prosecution against him
was dropped. He claimed that the failure to return his weapon and an alleged
prosecutor's policy not to return firearms seized during arrests violated the
Second Amendment right to keep and bear arms. A federal appeals court rejected
these claims, since the "right protected by the Second Amendment is not a
property-like right to a specific firearm." The plaintiff did not show
that the defendants interfered in any way with his right or ability to obtain
or retain other firearms. The court also found no violation of due process,
since there were adequate remedies under state law for any wrongful withholding
of personal property. Houston v. City of New Orleans, #11-30198, 2012 U.S. App.
Lexis 5370 (5th Cir.),
A man active in advocating the right to carry
concealed firearms in public openly carried a holstered handgun into retail
stores on two occasions. Both times, he was arrested for disorderly conduct and
had his gun confiscated. He was not prosecuted and each time his gun was
eventually returned. He claimed that his conduct was not disorderly and was
protected under the federal and state constitutions. The officers were entitled
to qualified immunity on unlawful arrest claims. The officers could not have
anticipated that the U.S. Supreme Court would subsequently issue Second
Amendment opinions raising an issue about whether his conduct was lawful and
were not required to balance alleged firearms rights under the Wisconsin state
constitution against the disorderly conduct law. The officers also were not
liable for violating the plaintiff's rights under the federal Privacy Act by
requesting his Social Security number during one of the incidents, since it was
not clearly established that they had to inform him whether the disclosure of
his Social Security number was voluntary or mandatory, and they had not denied
him any "right, benefit, or privilege" based on his refusal to
disclose the number. The court also rejected claims for unlawful seizure of his
property, the handgun. Gonzalez v. Village of West Milwaukee, #10-2356, 2012
U.S. App. Lexis 1965 (7th Cir.).
An officer stopped a motorist and took him into
custody on an outstanding arrest warrant. In the course of the arrest, the
officer retrieved the man's legally purchased and licensed handgun from his
vehicle and confiscated it. The charges against the arrestee are later dropped,
but the arrestee is told that his gun will not be returned and that he should
go to court to seek a replevin order if he wants it. The initial seizure of the
gun pursuant to a valid arrest was not a violation of due process, but the
court rules that the subsequent refusal to return the weapon with no legal
grounds to support it could form the basis for a valid due process claim. When
"an established state procedure deprives one of property, post-deprivation
remedies generally fail to satisfy" due process requirements. The court
also holds, however, that the city could not be held liable for a violation of
the Second Amendment, since that "confers a right only to keep and bear
arms generally, not a right to possess a particular firearm." Walters v.
Wolf, #10-3597, 660 F.3d 307 (8th Cir. 2011).
The operators of gun shows brought a
lawsuit, challenging, on Second Amendment grounds, a county ordinance that
prohibited bringing firearms or ammunition onto county property, effectively
prohibiting gun shows that had previously been held at the county's public
fairgrounds. A federal appeals court held that heightened scrutiny does not
apply to Second Amendment claims unless the government regulation in question
"substantially burdens" the right to keep and bears arms.
In this case, the mere refusal of the county to
allow the use of its property to facilitate the exercise of a Second Amendment
right did not constitute a "substantial burden." In light of the fact
that the complaint was initially drafted before several recent important U.S.
Supreme Court decisions on Second Amendment rights, however, the court ruled
that the plaintiff should have the opportunity to amend their complaint to
attempt to present a viable Second Amendment claim. Nordyke v. King, #07-15763,
2011 U.S. App. Lexis 8906 (9th Cir.).
Having previously found a Second Amendment individual
right to bear arms in striking down a handgun ban in the federal District of Columbia,
the U.S. Supreme Court has extended that ruling, in a case involving a handgun
ban by the City of Chicago. By 5-4, the Court held that the rights guaranteed
by the Second Amendment also apply to the states and their subdivisions through
the Fourteenth Amendment. McDonald v. City of Chicago, #08-1521, 2010 U.S.
Lexis 5523.
Editor's Note: Anticipating that the U.S.
Court of Appeals for the Seventh Circuit, asked to consider the Chicago handgun
ban on remand in light of this ruling, would strike down the Chicago handgun
ban, Chicago days later enacted a new handgun ordinance allowing the purchasing
and registering of one handgun per month for every adult resident of a
household, while setting forth certain city licensing, registration, and training
requirements, as well as restricting possession to one functioning loaded
handgun in the home, with restrictions on transport. The revised ordinance also
bans gun shops and firing ranges in the city, and prohibits the transfer of
weapons within the city except through inheritance. A lawsuit challenging
provisions of the new ordinance was filed in federal court days later. See
Benson v. City of Chicago, #10-cv-04184, (N.D, Ill. July 6, 2010).
Officers delayed, and
in some instances arrested travelers for violating New York state gun laws when
they tried to send unloaded guns in checked baggage through various New York
airports. The travelers argued that they were entitled to do so under 18 U.S.C.
Sec. 926A, which authorizes such transport in certain circumstances, and
declares that such transport shall not constitute a violation of local gun
laws. In a federal civil rights lawsuit over the issue, an appeals court has
held that Sec. 926A cannot be enforced under 42 U.S.C. Sec. 1983. The
application of the statute in particular circumstances was complex and
uncertain. Under the facts and circumstances of the arrests, the officers acted
in an objectively reasonable manner in believing that they had probable cause
to arrest for a violation of state gun laws, and that the requirements of the
federal statute were not met. Torraco v. Port Authority of New York and New
Jersey, #08-1895, 2010 U.S. App. Lexis 13379 (2nd Cir.).
A traveler was arrested at a New Jersey airport
by Port Authority of New York and New Jersey police for violating New Jersey
gun laws by possessing a handgun and ammunition. The traveler, who had flown to
New Jersey from Utah, had a handgun and ammunition in separate locked cases in
his checked luggage. Because of a delay, he had to stay overnight in a hotel in
New Jersey, and he retrieved his checked luggage before doing so. The next day,
when he attempted to fly on to his destination in Pennsylvania, the gun and
ammunition were detected during x-raying and he was arrested. He had declared
the presence of the gun and ammunition when checking his bags in Utah, where he
was licensed for the weapon. He sued for false arrest, claiming that the arrest
was unlawful under 18 U.S.C. Sec. 926A, which allows a licensed gun owner to
travel from one state through a second, en route to a third, provided that he
is licensed to carry the weapon in the first and third state and that it is not
readily accessible to him during transport, such as checked in luggage, or
locked in a compartment in a vehicle. Upholding summary judgment for the
defendants, a federal appeals court found that the plaintiff's conduct did not
meet the requirements of the federal statute, since he retrieved his luggage
containing the gun and ammunition before going to his New Jersey hotel, and had
with him the keys to the locked containers, making the gun and ammunition
readily accessible to him, whether or not he actually accessed them. Revell v.
Erickson, #09-2029, 598 F.3d 128 (3rd Cir. 2010).
An intermediate Colorado appeals court reinstated
a lawsuit challenging a state university policy banning the carrying of
concealed weapons on campus by students who have state concealed gun permits.
The lawsuit contends that the policy violates state law, including the state
constitutional provision providing an individual right to keep and bear arms.
The court noted in its opinion that nothing in the statute specifies public
university campuses as an exception to the concealed gun permits. Students for
Concealed Carry on Campus, LLC v. Regents of the University of Colorado,
#09-CA-1230, 2010 Colo. App. Lexis 541.
The North Carolina Supreme Court held that
retroactively applying a 2004 state law barring convicted felons from owning or
possessing firearms violated the rights of a man convicted of felony drug
possession with intent to sell and deliver whose right to possess firearms was
restored in 1987 by operation of law after he completed his sentence. The court
found that the application of the statute to the plaintiff was an "unreasonable
regulation not fairly related to the preservation of public peace and
safety," especially in light of the "absence of any exception or
possible relief from the statute's operation as applied to the plaintiff."
The plaintiff, the court found, does not pose a threat to public peace and
safety, in light of his thirty years of law-abiding conduct, his
"uncontested lifelong nonviolence toward other citizens," and his
compliance in giving up his weapon when informed of the 2004 statute. The court
held that this application of the statute violated the right to bear arms
guaranteed by the state constitution. Britt v. North Carolina, #488A07, 2009
N.C. Lexis 815. Editor's Note: While federal law generally prohibits,
among other things, the purchase or possession of firearms by felons, there is
an exception for those whose civil rights have been restored by a state on the
predicate state felony conviction. 18 U.S.C. 921(a)(20), in defining terms for
the purposes of federal firearms law, provides that: "What constitutes a
conviction of such a crime [a felony] shall be determined in accordance with
the law of the jurisdiction in which the proceedings were held. Any conviction
which has been expunged, or set aside or for which a person has been pardoned
or has had civil rights restored shall not be considered a conviction for
purposes of this chapter, unless such pardon, expungement, or restoration of
civil rights expressly provides that the person may not ship, transport,
possess, or receive firearms."
The state of Montana has enacted a law, effective
October 1, 2009, entitled the Montana Firearms Freedom Act, Ch. 205, Title 30
Mont. Code Annotated, that purports to exempt from all federal firearms
regulations, including registration, background checks, and firearms dealer
licensing, firearms and ammunition made and retained within the state. The
statute asserts the Second, Ninth, and Tenth Amendments as authority for the
legislation, as well as the compact entered into between Montana and the U.S.
government when Montana became a state in 1889. A similar statute was recently
enacted in Tennessee, and similar proposed statutes have been introduced in
five other states. The federal Bureau of Alcohol, Tobacco, Firearms and
Explosives has taken the position that the Montana legislation violates federal
firearms laws and regulation, and that federal law supersedes it. The Second
Amendment Foundation, a national gun rights group, together with a Montana
group, has announced plans to file suit on October 1, 2009 to seek a court
order against the enforcement of federal firearms laws against firearms and
ammunition covered by the Montana statute. The Montana statute states that it
does not apply to firearms that cannot be carried and used by one person,
firearms with a bore diameter greater than 1½ inches and uses smokeless powder,
ammunition that uses exploding projectiles or fully automatic weapons.
Update: As previously reported, a
federal appeals court ruled that the rights guaranteed by the Second Amendment
apply to the states because they are incorporated by the due process clause of
the Fourteenth Amendment, but that the Second Amendment does not guarantee a
right to possess guns on government property. The case involved an ordinance
banning firearms at a public fairground. This was the only federal appeals
court decision to date applying the Second Amendment to the states through the
Fourteenth Amendment. Nordyke v. King, #07-15763, 2009 U.S. App. Lexis 8244
(9th Cir.). The U.S. Court of Appeals for the Ninth Circuit has now granted a
rehearing en banc in the case, and stated in the order that the original
opinion by the three-judge panel "shall not be cited as precedent by or to
any court of the Ninth Circuit." Nordyke v. King, #07-15763, 2009 U.S. App.
Lexis 16908 (9th Cir.).
Residents of Iowa who were denied applications
for nonprofessional permits to carry pistols claimed that these denials, by a
county sheriff and his successor, violated their Second and Fourteenth
Amendment rights, because no justification was provided and they met all
statutory requirements for the permits. The court dismissed the "sheriff's
department" as a defendant, since it was not a legal entity under state
law, and the statute gave only the sheriff power and discretion to decide whether
to issue the permits in question. Claims against the sheriff's
"successors" were also dismissed. Dorr v. Weber, #08-4093, 2009 U.S.
Dist. Lexis 59110 (W.D. Iowa).
A federal appeals court has rejected a Second
Amendment constitutional challenge to two municipalities' handgun bans, ruling
that the individual right to bear arms that the U.S. Supreme Court has held is
protected by the Second Amendment applies only to the federal government, and
is not "incorporated" by the Fourteenth Amendment to apply to the
states and municipalities. It held that any decision to apply the Second
Amendment in that fashion must be made by the U.S. Supreme Court. The
plaintiffs in the case have filed a petition seeking U.S. Supreme Court review
of the decision. Nat'l Rifle Ass'n of Am. v. City of Chicago, No. 08-4241, 2009
U.S. App. Lexis 11721 (7th Cir.), petition for certiorari filed June 3, 2009.
An intermediate Pennsylvania appeals court has
upheld an injunction barring a city from enforcing two ordinances prohibiting
the possession, sale, and transfer of certain types of guns, including assault
weapons, and prohibiting purchase of a handgun through a straw purchaser. State
law regarding weapons, the court ruled, has the effect of denying
municipalities in the state power to regulate guns. The court also upheld the
trial court's finding that the plaintiffs lacked standing to challenge three
other ordinances which authorize temporary removal of guns when a person poses
a risk of imminent harm, requiring notice from the owners of lost or stolen
guns, and barring persons subject to an abuse order from possessing or
acquiring guns. National Rifle Association v. City of Philadelphia, #1305 C.D.
2008, 2009 Pa. Commw. Lexis;
Gun show promoters failed to show that an ordinance
prohibiting the presence of firearms on county property violated their Second
Amendment or First Amendment rights. The federal appeals court ruled that the
rights guaranteed by the Second Amendment apply to the states because they are
incorporated by the due process clause of the Fourteenth Amendment, but that
the Second Amendment does not guarantee a right to possess guns on government
property. The county could regulate gun possession in sensitive public spaces,
and its actions did not violate the promoters' right to self-defense. Even if
the holding of a gun show was expressive conduct, the county ordinance was not
intended to suppress speech, and the desire to reduce gun violence was a
reasonable basis for the law. Finally, the appeals court rejected an equal
protection claim based on an argument that the ordinance unequally applied to
the possession of guns for promoters holding a gun show and possession of guns
for "entertainment" purposes. The court found that entertainment
events were not similarly situated to gun shows, as they involved safety
measures that the gun show promoters couldn't meet. Nordyke v. King, No.
07-15763, 2009 U.S. App. Lexis 8244 (9th Cir.).
In a lawsuit challenging, on Second Amendment
grounds, the constitutionality of a New York State statute criminalizing the
possession of nunchakus in the home, a federal appeals court held that the
Second Amendment does not apply to the states, but only limits the actions of
the federal government. The court also rejected a Fourteenth Amendment
substantive due process claim concerning the statute, holding that the ban at
issue was supported by a rational purpose, since the items at issue were
designed as weapons, with no use other than to maim or kill. Maloney v. Cuomo,
Docket No. 07-0581, 2009 U.S. App. Lexis 1402 (2nd Cir.).
Court upholds police commissioner's revocation of
New York man's pistol license based on his transport of the handgun to Nevada
for a gun convention, when the license only allowed the transport of the gun to
authorized hunting areas, and to small arms ranges or shooting clubs. The court
rejected the gun owner's argument that his actions were authorized by the
Firearms Owners' Protection Act (FOPA), 18 U.S.C. Sec. 926A, allowing the
transporting of guns for any lawful purpose between two locations where the gun
could lawfully be possessed and carried. The FOPA did not apply because
the license did not authorize the lawfully carrying of the gun on the trip to
another state. Beach v. Kelly, No. 4012, 113372/06, 2008 N.Y. App. Div. Lexis
5675 (A.D. 1st Dept.).
The U.S. Supreme Court, by a 5-4 vote, ruled that
a D.C. ordinance banning handgun possession and requiring that lawfully owned
firearms be kept unloaded or bound by a trigger lock violates the Second
Amendment. The Court found an individual constitutional right to possess a
firearm for use for lawful purposes, such as self-defense within the home.
District of Columbia v. Heller, No. 07-290, 2008 U.S. Lexis 5268.
Federal appeals court rules that the Second Amendment
to the U.S. Constitution protects the right of an individual to keep and bear
firearms, and that exercise of that right is not limited to persons enrolled in
a state militia or National Guard unit. Court reinstates lawsuit seeking to challenge
D.C. laws prohibiting the registration of handguns, requiring a license to
carry a pistol, and mandating that all firearms lawfully owned in the District
be contained in a trigger lock or else be kept disassembled and unloaded.
Parker v. D.C., No. 04-7041, 478 F.3d 370 (D.C. Cir. 2007).
City and police officers did not violate an
arrestee's Second Amendment right to bear arms or his Fourteenth Amendment
right to due process before being deprived of his property when his handgun was
taken away during his arrest for various criminal charges, and was subsequently
destroyed on court order. The court noted that the confiscation of one weapon
did not infringe on the arrestee's right to lawfully acquire another weapon,
and that the arrestee was provided with notice of the court hearing regarding
the disposition of his pistol, and was in attendance at the court proceeding at
which theorder for its destruction was issued. Garcha v. City of Beacon, No. 04
CIV.5981, 351 F. Supp. 2d 213 (S.D.N.Y. 2005). [N/R]
278:26 Even though state police violated
Maryland state law in turning down, on the basis of past arrests, woman's
application to purchase handgun, applicant could not collect damages for
violation of federal civil rights; state law remedies were adequate and federal
appeals court rules that Second Amendment does not apply to the states Love v.
Peppersack, 47 F.3d 120 (4th Cir. 1995).