Thursday, October 12, 2017

Ninth Circuit Upholds Zoning Denial for Gun Store

The en banc Ninth Circuit ruled this week that a denial of a zoning permit to open a gun store did not violate the Second Amendment rights of local residents (to buy guns) or the gun shop (to sell them).

The case, Teixeira v. County of Alameda, arose when the unincorporated county denied a conditional use permit to Teixeira to open a gun shop under a county ordinance. The ordinance say that firearms retailers can't operate within 500 feet of residential districts, schools and day-cares, other firearm retailers, and liquor stores. After some back-and-forth, the Zoning Board found that Teixeira's proposed shop was within 500 feet of two homes, and so denied the permit.

Teixeira sued, arguing that the ordinance requiring a conditional use permit violated his own Second Amendment right (to sell) and the Second Amendment rights of county residents (to buy). The en banc court rejected these claims.

The court ruled first that the plaintiffs failed to plausibly allege that the ordinance impeded any county resident from buying a gun:

Alameda County residents may freely purchase firearms within the County. As of December 2011, there were ten gun stores in Alameda County. Several of those stores are in the non-contiguous, unincorporated portions of the County. In fact, Alameda County residents can purchase guns approximately 600 feet away from the proposed site of Teixeira's planned store, at a Big 5 Sporting Goods Store.

The court therefore held that the ordinance did not violate the Second Amendment rights of county residents to buy.

As to the gun-store owners' right to sell, the court surveyed the text and history of the Second Amendment and concluded that it did not protect the right to sell firearms. "[T]he right of gun users to acquire firearms legally is not coextensive with the right of a particular proprietor to sell them." (The court rejected an analogy to the First Amendment for booksellers, writing that "bookstores and similar retailers who sell and distribute various media, unlike gun sellers, are themselves engaged in conduct directly protected by the First Amendment.") Because the ordinance didn't restrict Second Amendment rights, the court said it was "necessarily allowed by the Amendment."

October 12, 2017 in Cases and Case Materials, News, Opinion Analysis, Second Amendment | Permalink | Comments (0)

Tuesday, September 19, 2017

Ninth Circuit Rejects Second Amendment Challenge to Seattle's Use-of-Force Policy

The Ninth Circuit today rejected a Second Amendment challenge by Seattle police officers to the city's use-of-force policy. The ruling means that the policy stays in place.

The case arose when Seattle agreed to adopt a use-of-force policy for its police officers as part of a settlement agreement with the U.S. government in a case alleging that Seattle police engaged in a pattern or practice of excessive use of force. The policy says that "[o]fficers shall only use objectively reasonable force, proportional to the threat or urgency of the situation, when necessary, to achieve a law-enforcement objective." It goes on to provide a set of factors that officers must consider to determine whether a use of force is objectively reasonable, necessary, and proportional to the threat, but only "[w]hen safe under the totality of the circumstances and time and circumstances permit[.]" The policy requires officers to use de-escalation tactics in order to reduce the need for force only "[w]hen safe and feasible under the totality of the circumstances."

Seattle officers sued, arguing that the policy violated the Second Amendment, due process (fundamental rights), and equal protection.

The Ninth Circuit disagreed. The court applied the familiar two-part Second Amendment analysis and concluded (1) that while the policy "burdens conduct protected by the Second Amendment," (2) it satisfies intermediate scrutiny.

As to the burden step, the court said that the policy "does not resemble any of the 'presumptively lawful' regulations recognized in Heller," and that "the parties have adduced no evidence that the [policy] imposes a restriction on conduct that falls outside the historical scope of the Second Amendment . . . ." As a result, the court held that the policy burdened Second Amendment conduct.

As to the scrutiny step, the court set the level of review at intermediate scrutiny, because the city "has a significant interest in regulating the use of department-issued firearms by its employees," and because the policy "does not impose a substantial burden on [the officers'] right to use a firearm for the purpose of lawful self-defense." The court noted that the government, in adopting the policy, was acting as "proprietor," and not "regulator," in that it was regulating its own officers' use of force. This might've put a thumb on the scale in favor of the regulation, but, if so, it's not clear how weighty a thumb, because the court nevertheless applied intermediate scrutiny (and not a lower level of scrutiny).

The court went on to say that the policy satisfies intermediate scrutiny, because it's reasonably related to the city's significant interests in public safety and officer safety.

The court also rejected the officers' due process and equal protection claims.

September 19, 2017 in Cases and Case Materials, News, Opinion Analysis, Second Amendment | Permalink | Comments (0)

Friday, June 2, 2017

Ninth Circuit Upholds Gun Transfer Fee

The Ninth Circuit ruled this week that a state fee imposed on firearms transfers--and, in particular, a portion of the fee that goes to fund enforcement efforts against illegal firearms purchasers--does not violate the Second Amendment.

The case involved a challenge to California's firearms transfer fee--a $19 fee on firearms transfers, about $5 of which goes to fund enforcement efforts against illegal firearms purchasers. The plaintiffs claimed that the $5 portion of the fee violated the Second Amendment, because it imposed a burden on the right to bear arms that wasn't closely enough related to an important government interest.

The court first assumed, without deciding, that the fee fell within the core of the Second Amendment. It applied only intermediate scrutiny, because the fee wasn't a substantial burden on anyone's ability to actually get a firearm. (The court noted that the plaintiff "has neither alleged nor argued that the [fee] has any impact on the plaintiffs' actual ability to obtain and possess a firearm.") (The court noted that it always applied intermediate scrutiny at the second step of the familiar Second Amendment test, but it appeared to hold open the possibility that higher scrutiny would apply to laws that "severely burden" the right.)

The court said that the fee easily met intermediate scrutiny:

Given the State's important interest in promoting public safety and disarming prohibited persons under the first prong of the test, there is a "reasonable fit" between these important objectives and the challenged portion of the . . . fee.

The ruling means that the fee stays on the books.

June 2, 2017 in Cases and Case Materials, Fundamental Rights, News, Opinion Analysis, Second Amendment | Permalink | Comments (0)

Wednesday, February 22, 2017

Fourth Circuit Upholds Maryland's Assault Weapon Ban

The en banc Fourth Circuit yesterday upheld Maryland's ban on assault weapons and large-capacity magazines against a Second Amendment challenge. The ruling reverses an earlier panel decision and puts the circuit in line with other circuits that have ruled on the issue. (We posted on the earlier panel ruling here.)

The court said first that assault weapons aren't even protected by the Second Amendment. Quoting Heller, the majority wrote, "Because the banned assault weapons and large-capacity magazines are 'like' 'M-16 rifles'--'weapons that are most useful in military service'--they are among those arms that the Second Amendment does not shield."

The court said next that even if the Second Amendment applied, the ban satisfied intermediate scrutiny. (The court applied intermediate scrutiny, not strict, because Maryland's ban "does not severely burden the core protection of the Second Amendment, i.e., the right of law-abiding, responsible citizens to use arms for self-defense in the home.") The court wrote that the ban is "reasonably adapted" to the state's "substantial" (indeed, compelling) interest in public safety, because assault weapons and large-capacity magazines are especially dangerous and are disproportionately used in crime and to kill law enforcement officers. The court also noted that the ban did not regulate the more typical weapon used in the home for self-defense (the core of the Second Amendment right, under Heller)--the handgun.

The court also ruled that the ban didn't violate equal protection by allowing retired police officers to possess assault weapons, because police officers are highly trained, and thus not situated similarly to civilians. Finally, the court held that the ban on "copies" of assault weapons wasn't unconstitutionally vague, because the term ("copy") is sufficiently clear under well established Maryland law.

The ruling drew a sharp dissent and several other opinions.

February 22, 2017 in Cases and Case Materials, News, Opinion Analysis, Second Amendment | Permalink | Comments (0)

Friday, January 20, 2017

Greenhouse on Peruta and Guns Outside the Home

Check out Linda Greenhouse's analysis at the NYT of Peruta v. California, the case testing whether the Second Amendment protects a right to carry a gun outside the home. We last posted on the case here, when the Ninth Circuit denied rehearing its 7-4 en banc ruling upholding California's "good cause" requirement for a concealed carry permit. Plaintiffs sought review at the Supreme Court last week.

January 20, 2017 in News, Second Amendment | Permalink | Comments (0)

Thursday, January 19, 2017

Seventh Circuit Shoots Down Chicago's Restrictions on Firing Ranges

The Seventh Circuit ruled yesterday that Chicago's restrictions on firing ranges violate the Second Amendment. The ruling means that the City can no longer enforce two of its zoning restrictions and an age regulation for firing ranges, and that Chicago will have to go back to the drawing board if it wants to zone or regulate.

The case has some history. Chicago previously banned all firing ranges from the City. But the Seventh Circuit struck that ban, ruling that it intruded on "the core individual right of armed defense[,] includ[ing] a corresponding right to acquire and maintain proficiency in firearm use through target practice at a range."

The City came back with a bevy of regulations, including three at issue here: (1) a zoning restriction that limits firing ranges only as special uses in manufacturing districts; (2) a zoning restriction that prohibits ranges within 100 feet of another range or within 500 feet of a residential district, school, place of worship, and multiple other uses; and (3) a provision barring anyone under age 18 from entering a shooting range.

The court applied the familiar two-part framework to Second Amendment challenges. It first asked whether the regulated activity fell within the scope of the Second Amendment. It next asked, if so, do the regulations meet the sliding scale of heightened scrutiny, where a regulation must more closely fit the government's objectives the most closely the regulations touch on the core of the Second Amendment?

Drawing on its earlier case and the "Second Amendment right to maintain proficiency in firearm use via target practice at a range," the court said that the three regulations all fell within the scope of the Second Amendment. The court then held that the City failed to provide any evidentiary support for its claimed concerns to justify the regulations--firing range attract gun thieves, they cause airborne lead contamination, and they carry a risk of fire--and therefore they must fail.

Importantly, the court held that the two zoning restrictions had to be considered as a package, not separately. The court then noted that between the two, only about 2.2 percent of City area was available to firing ranges. Moreover, since the court's earlier ruling, no firing range had opened in the City.

Judge Rovner wrote a lengthy opinion dissenting on the distance-zoning regulation, but concurring on the other points. Judge Rovner argued that the court should have analyzed the two zoning regulations separately, and, if it had, it should have ruled that the City had sufficient interests in regulating the distance between a firing range and certain other sites. Judge Rovner also wrote that the City should have greater leeway in regulating "the limited rights of minors under the Second Amendment," citing a host of stories about injuries and deaths of youths at firing ranges. But ultimately she agreed with the majority that "the outright ban on all children under the age of eighteen entering a firing range is impermissible . . . ."

January 19, 2017 in Cases and Case Materials, News, Opinion Analysis, Second Amendment | Permalink | Comments (1)

Wednesday, December 14, 2016

Ninth Circuit Upholds California's Ten-Day Waiting Period for Gun Purchasers

The Ninth Circuit this week upheld California's ten-day waiting period for gun purchasers against a Second Amendment challenge, even as to those purchasers who already had a concealed carry permit and to those who had cleared a background check in less than ten days.

The ruling is a significant defeat for gun-rights advocates. It means that California's ten-day waiting period stays in place for all gun purchasers as a "reasonable safety precaution" against impulsive gun buys.

The Ninth Circuit applied the familiar two-part test for Second Amendment challenges now used by most of the federal circuits: (1) does the law burden conduct protected by the Second Amendment; and, if so, (2) does the law satisfy the appropriate level of scrutiny? As to the first step, the Ninth Circuit applies an "historical understanding" test--"[l]aws restricting conduct that can be traced to the founding era and are historically understood to fall outside of the Second Amendment's scope may be upheld without further analysis." As to the second step, the Ninth Circuit applies a sliding scale based on how close the law comes to the core of the Second Amendment and how much it burdens Second Amendment rights.

The court said that it didn't need to address step 1 (the historical understanding), because the ten-day waiting period satisfied the appropriate level of review, intermediate scrutiny. (The court used its sliding scale test to arrive at intermediate scrutiny, because "[t]he actual effect of the [waiting period] on Plaintiffs is very small.") The court held that the law providing a cooling off period to promote safety and to reduce gun violence, even for purchasers who already had a gun (because the purchasers may seek "to purchase a larger capacity weapon that will do more damage when fired into a crowd.") "A 10-day cooling-off period would serve to discourage such conduct and would impose no serious burden on the core Second Amendment right of defense of the home . . . ."

Judge Thomas concurred: "I agree entirely with, and concur in, the majority opinion. I write separately, however, because the challenge to California's ten-day waiting period can be resolved at step one of our Second Amendment jurisprudence. As a longstanding qualification on the commercial sale of arms under [Heller], a ten-day waiting period is presumptively lawful."

December 14, 2016 in Cases and Case Materials, News, Opinion Analysis, Second Amendment | Permalink | Comments (0)

Tuesday, September 20, 2016

Divided Sixth Circuit Weighs in On Federal Gun Ban for Involuntary Commitment

A divided en banc Sixth Circuit last week reversed a district court's order dismissing an as-applied Second Amendment challenge to the federal ban on gun possession by anyone "who has been adjudicated as a mental defective or who has been committed to a mental institution."

The ruling sends the case back to the district court to give the government a second chance to show that the federal ban meets intermediate scrutiny. The ruling doesn't end the case, and it doesn't say whether the ban violates the Second Amendment. It just sends the case back to give the government a second bite at the apple.

In short, the ruling says this: A person's long-ago involuntary commitment doesn't necessarily make them a danger today, and, without a safety valve for individuals who no longer pose a danger, the federal ban may sweep too broadly with respect to currently safe individuals.

The case arose when 74-year-old Clifford Tyler tried to buy a gun. Tyler was rejected by the county sheriff, because he had been involuntarily committed for less than 30 days in the 1980s. Still, despite not showing any evidence of mental illness in his latest check, in 2012, under federal law, 18 U.S.C. Sec. 922(g)(4), Tyler couldn't possession a firearm.

Moreover, federal law didn't allow any exception. It turns out that federal law used to permit an applicant, otherwise barred by Section 922, to apply to the Attorney General for an exception. But Congress de-funded that authority, and then transferred it to participating states. Tyler's state, Michigan, hadn't accepted it, so Tyler had no recourse.

The Sixth Circuit ruled that Tyler made out a case, at least sufficient to withstand a motion to dismiss. As an initial matter, the court held that Heller's list of "presumptively lawful regulatory measures" did not answer the questions. According to the court, that's because Section 922(g)(4) is a relatively new innovation, and doesn't have the kind of "historical pedigree" that would allow it to "give Heller conclusive effect." "In the absence of such evidence, it would be odd to rely solely on Heller to rubber stamp the legislature's power to permanently exclude individuals from a fundamental right based on a past involuntary commitment."

The court next turned to the two-part approach under circuit precedent and adopted in several other circuits. It ruled first that the ban "burdens conduct that falls within the scope of the Second Amendment, as historically understood." It particular, "historical evidence . . . does not directly support the proposition that persons who were once committed due to mental illness are forever ineligible to regain their Second Amendment rights." It ruled next that the ban failed intermediate scrutiny. It said that while the government had important enough interests (keeping guns out of the hands of risky people, protecting the community, and preventing suicide), the flat, lifetime ban was too broad. The court noted that some persons with a past commitment for a mental condition do not currently have a mental condition, and can safely possess a firearm. But without a procedure for an exception, the ban prohibits anyone with a past commitment from possessing a firearm.The ruling drew several separate opinions, both concurring and dissenting. As summed up by the principal opinion, "ten of us would reverse the district court; six of us would not. And at least twelve of us agree that intermediate scrutiny should be applied, if we employ a scrutiny-based analysis." Thus, the court remanded with specific instructions to allow the government to satisfy intermediate scrutiny by introducing additional evidence in support of the lifetime ban or additional evidence showing that the ban would be constitutional as to Tyler, because he would pose a risk to himself or others if he had a gun.

September 20, 2016 in Cases and Case Materials, News, Opinion Analysis, Second Amendment | Permalink | Comments (0)

Monday, August 15, 2016

Ninth Circuit Denies Rehearing in California Concealed Carry Case

The Ninth Circuit today denied rehearing of its en banc decision in Peruta v. County of San Diego, upholding California's "good cause" requirement for a concealed carry permit against a Second Amendment challenge.

The ruling is a significant win for advocates of restricted and regulated concealed carry.

Recall that the full Ninth Circuit rejected the Second Amendment challenge to the "good cause" requirement earlier this summer. Plaintiffs petitioned for a rehearing, but the court denied it.

The ruling ends the case at the Ninth Circuit. The plaintiff's only option now is to petition for Supreme Court review. But without a ninth justice, the Court (if it accepted the case) would almost surely split 4-4, leaving the Ninth Circuit ruling in place--that is, leaving things exactly as they are now.

The plaintiffs petitioned for rehearing by arguing that the en banc majority mistakenly ruled that the Second Amendment doesn't protect a right to concealed carry (when the case was in fact about whether the "good cause" requirement infringed on the plaintiffs' right to carry at all outside the home); that the majority's approach conflicts with other courts; that the majority's approach "impermissibly relegates the Second Amendment to Second-class Status"; and that the "Decision Unnecessarily Intrudes on the Prerogatives of the State."

Today's two-page Order doesn't specifically address those claims; it simply rejects the plaintiffs' petition for rehearing.

The Ninth Circuit's case page is here, with all appellate court filings.

August 15, 2016 in Cases and Case Materials, News, Second Amendment | Permalink | Comments (2)

Thursday, June 9, 2016

Divided Ninth Circuit Says Second Amendment Doesn't Protect Concealed Carry

A sharply divided en banc Ninth Circuit ruled today that the Second Amendment does not protect concealed carry. The ruling, a win for the state and for local regulation of concealed carry, upholds two California local restrictions on obtaining a concealed carry permit.

The case is a significant victory for supporters of gun regulations, and a significant defeat for gun-rights advocates.

It seems unlikely that the Supreme Court will grant review quite yet, however, unless there are five justices who would vote to affirm. That's because a 4-4 split on the Court would have no effect and simply leave today's Ninth Circuit ruling in place. (The Court split 5-4 in both Heller and McDonald. In McDonald, the more recent of the two, all of the current conservatives were in the majority, and all the current progressives were in dissent (except Justice Kagan, who replaced Justice Stevens).

The case involved California's concealed carry permitting law. In general, California does not allow concealed carry. But individuals can apply for a permit if they can show "good cause." California law authorizes county sheriffs to establish and publish policies defining good cause.

The plaintiffs in the case said the good cause standards in San Diego and Yolo Counties violated the Second Amendment, because those standards prohibited them from obtaining a concealed carry permit (and thus from carrying a concealed weapon).

The en banc Ninth Circuit disagreed. Drawing on the historical approach in Heller and McDonald, the court held that the Second Amendment doesn't even protect concealed carry. The court traced the history (starting with a directive issued by Edward I in 1299 through rulings in the nineteenth century) and concluded that "[t]he right of a member of the general public to carry a concealed firearm in public is not, and never has been, protected by the Second Amendment." And because concealed carry isn't protect, the court said, "any prohibition or restriction a state may choose to impose on concealed carry--including a requirement of 'good cause,' however defined--is necessarily allowed by the Amendment."

The court went on to say that if it had to address whether the "good cause" requirements satisfied the Second Amendment (which it didn't, because it held that concealed carry wasn't protected at all by the Second Amendment), then it would uphold those requirements under intermediate scrutiny because they "promote[] a substantial government interest that would be achieved less effectively absent the regulation." Judge Graber, joined by Chief Judge Thomas and Judge McKeown, made this point in concurrence.

The court did not say whether the Second Amendment protects some right to carry firearms in public (i.e., open carry); it only said that the Second Amendment didn't protect concealed carry.

Judge Callahan wrote a principal dissent, joined by Judges Silverman, Bea, and N.R. Smith. Judges Silverman and N.R. Smith also wrote their own dissents. Judge Callahan argued in part that the majority erred by defining the scope of the claimed right to narrowly--as the "right to carry a concealed firearm," as opposed to a more general "right to carry a firearm in self-defense outside the home." Judge Callahan cited Obergefell, Lawrence, and Griswold in support of the argument that "[t]he Court has defined other constitutional rights broadly as well."

June 9, 2016 in Cases and Case Materials, News, Opinion Analysis, Second Amendment | Permalink | Comments (1)

Thursday, March 24, 2016

Tenth Circuit Says No Standing to Challenge Colorado's Gun Laws

In a case that's just crazy enough to have come right out of a ConLaw exam, the Tenth Circuit ruled this week that a group of nonprofits and businesses lacked standing to challenge Colorado's background-check requirement and ban on the possession, sale, and transfer of large-capacity magazines under the Second Amendment and the ADA.

The ruling says nothing on the merits, of course. But it is a pretty good "how-to" on losing on standing (if you're looking for such a thing): the ruling recounts, in detail, the plaintiffs' numerous and surprising missteps and lost opportunities in pressing their standing arguments.

First, the court rejected the plaintiffs' economic injury claim. But this isn't (necessarily) because it's a bad claim; instead, it's because the plaintiffs don't make it. "While compelling arguments may exist as to why we should adopt [an accepted approach on economic burdens when compliance is coerced by the threat of enforcement], the plaintiffs fail to make those arguments in their opening brief, and we decline to make them on their behalf." So the Tenth Circuit denied the plaintiffs' newly generated economic injury theory and applied the district court's credible-threat-of-prosecution test.

Next, under that test, the court said that a number of plaintiffs simply waived their challenge to the district court's ruling as to the background-check requirement. As to those left over, these organizations could only show that they had standing to challenge the background check by showing that it was a burden to comply with the background check--which means, of course, that they couldn't satisfy the credible-threat-of-prosecution test. One organization that alleged that it previously violated the background-check requirement ran into another problem: the prosecutor declined to prosecute. And as to current or future violations: the head of the organization pleaded the Fifth and thus declined to give any details.

Third, a good number of plaintiffs failed to provide any evidence of standing to challenge the large-capacity-magazine ban at the district court. They didn't appeal, and the plaintiffs didn't appeal the district court's failure to address other plaintiffs below. That left just one group on appeal. But that group couldn't establish associational standing on behalf of its member, because her large-capacity magazine was grandfathered by the ban, and her claim that she might eventually want to buy another was too speculative an injury.

Finally, two individuals argued that the gun laws violated the ADA, but failed to allege anything other than that they were disabled. The court said that this may be enough to show standing under the ADA, but it's not enough to show that they had constitutional standing to challenge the gun laws at issue here.

There were other problems with the plaintiffs' case, equally baffling. Take a peek if you're trawling for a good standing fact pattern for your next exam, or if you're looking for a good example how not to argue standing.

March 24, 2016 in Cases and Case Materials, Jurisdiction of Federal Courts, News, Opinion Analysis, Second Amendment, Standing | Permalink | Comments (0)

Monday, February 29, 2016

Supreme Court's Oral Argument in Voisine: Does Justice Thomas believe there is a Second Amendment issue?

Today's oral argument in Voisine v. United States centers on  the statutory construction of 18 U.S.C. § 921(a)(33)(A) which defines a "“misdemeanor crime of domestic violence” as an offense that is a misdemeanor AND 

has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.

The relevance of this definitional section is its application to 18 U.S.C. §922(g)(9) which makes is a federal crime for anyone "who has been convicted in any court of a misdemeanor crime of domestic violence," to "ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."

At issue in Voisine is whether the misdemeanor crimes involving family offenses that can be satisfied with a reckless mens rea are included the definition.  Virginia Villa, arguing for the petitioners Voisine and Armstrong, stressed statutory definitions but the arguments delved into common law definitions as well.  Arguing for the United States, Assistant Solicitor General Ilana Eisenstein stressed Congressional intent, with Justice Ginsburg surfacing the "rule of lenity." 

But the argument then took a constitutional turn.

Clarence_Thomas_official

This was prompted by questioning from Justice Thomas (seemingly just as Eisenstadt believed her argument had concluded):

 This Court should continue to interpret Section 922(g)(9) in light of that compelling purpose.

If there are no further questions.

JUSTICE THOMAS: Ms. Eisenstein, one question.

Can you give me ­­ this is a misdemeanor violation. It suspends a constitutional right. Can you give me another area where a misdemeanor violation suspends a constitutional right?

Justice Thomas thereafter made a First Amendment analogy, asked whether the Second Amendment was indefinitely suspended, and pointed out that the underlying misdemeanor need not have involved a firearm.   In considering possible analogies, Justice Kennedy pointed to SORNA which curtails the interstate travel of registered sex offenders.  (Justice Kennedy could have analogized to sex offender cases involving the restrictions on First Amendment rights as well).  Justice Breyer asked whether the Congressional statute was a "reasonable regulation of guns under the Second Amendment given Heller and the other cases with which I disagreed?"  This provoked laughter but was also a poignant reminder that Heller's author was not on the bench given his unanticipated death.  Justice Breyer, however, continued and attempted to make clear that the constitutional question was not clearly before the Court.  It may be before the Court as a matter of constitutional avoidance (the statute should be construed to avoid the constitutional question), but, as Justice Breyer stated:

 So one answer would be, well, maybe so. We aren't facing the constitutional question. We are simply facing the question of what Congress intended. And if this does raise a constitutional question, so be it. And then there will, in a future case, come up with that question. So we ­­ or our point is, we don't have to decide that here.

EISENSTEIN: That's correct, Your Honor.

JUSTICE BREYER: Thank you.

EISENSTEIN: If there are no further questions.

 Ilana Eisenstein was then excused by Chief Justice Roberts.

Justice Thomas broke his own well-remarked upon habit of not asking questions during oral argument; it's been a decade since he has.  But as some Court observers has noticed, he did write notes which were passed to Justice Scalia.  It is difficult to not to make a causal connection in this regard.  Moreover, Justice Thomas assumed a more active role in a case seemingly involving Second Amendment rights, an issue which a future Court might reconsider. 

However, as the Court did in another domestic violence case last term,  Elonis v. United States, look for a decision that engages in statutory construction and avoid the constitutional issue.

 

February 29, 2016 in Cases and Case Materials, Courts and Judging, First Amendment, Interpretation, Oral Argument Analysis, Second Amendment, Supreme Court (US) | Permalink | Comments (0)

Saturday, February 6, 2016

Fourth Circuit Applies Strict Scrutiny to Maryland Assault Weapon Ban

Schwinn-steven
Steven D. Schwinn, John Marshall Law School

A sharply divided panel of the Fourth Circuit ruled this week that Maryland's assault-weapon ban is subject to the most stringent constitutional test, strict scrutiny. The ruling all but ensures that the ban will fall when the Second Amendment challenge, Kolbe v. Hogan, goes back to the district court on remand.

The ruling is a dramatic split from similar rulings in other circuits. The D.C. Circuit and the Second Circuit both applied intermediate scrutiny to similar bans; the Seventh Circuit applied its own test (distinct from a traditional tier of review), and the Supreme Court declined to review that ruling just this past December.

Given this trend, the Fourth Circuit's ruling is a little more than surprising. But the majority said that Maryland's flat ban on assault weapons and large-capacity magazines cut to the core of the Second Amendment (self-defense within the home) and left no room for possession of these kinds of weapons. That was enough to justify strict scrutiny, said the majority.

The dissent, in contrast, noted that Heller itself left room for this kind of regulation, and that sister circuits have applied a lower level of scrutiny.

The ruling is not final: the panel sent the case back to the district court for application of the strict scrutiny standard. Still, this all but guarantees that the courts will strike the ban, handing a significant victory to gun-rights advocates, dealing a blow to advocates of gun regulations, and throwing a wrench into the jurisprudence on assault-weapon bans in the circuits.

 

February 6, 2016 in Cases and Case Materials, News, Opinion Analysis, Second Amendment | Permalink | Comments (0)

Wednesday, January 6, 2016

More on President Obama's Gun EO and Separation of Powers

Amy Goodman hosted a debate between John Velleco, director of federal affairs for Gun Owners of America, and Caroline Fredrickson, president of the American Constitution Society, on the separation-of-powers issues in President Obama's executive actions to control gun violence:

 

January 6, 2016 in Executive Authority, News, Second Amendment, Separation of Powers | Permalink | Comments (0)

Tuesday, January 5, 2016

President Obama's Gun EO and Separation of Powers

President Obama's executive actions to control gun violence are drawing predictable Second Amendment howls. But there's another constitutional claim against President Obama's actions--that President Obama overreached and violated the separation of powers.

The emerging separation-of-powers claim focuses on the President's attempt to clarify statutory language, in particular, which gun sellers are "engaged in the business of dealing firearms" under federal law. Sellers so engaged have to get a federal license and conduct background checks on purchasers.

Firearms dealers certainly qualify; individuals selling guns don't. But that leaves a big grey area and allows many sellers to avoid federal licensing and background checks, even if they sell a lot of guns. President Obama's actions are designed to give some guidance to federal regulators and law enforcement on who is "engaged in the business of dealing firearms," so that more sellers who sell many guns (but have previously flown under the regulatory radar) have to get a license and conduct background checks. 

So: the President's action is either validly enforcing the law, or it's invalidly rewriting the law, in violation of the separation of powers.

Phillip Bump at WaPo has a nice, short summary of the positions.

Bob Adelmann, writing in the New American, says that the measure invalidly rewrites the law, and surveys the emerging arguments that support that position.

On the other side, law professors who urged President Obama to take action last month say that this measure is valid enforcement of federal law.

The law professors surely have the better argument. But the courts will soon have their own say.

January 5, 2016 in Executive Authority, News, Second Amendment, Separation of Powers | Permalink | Comments (0)

Monday, December 7, 2015

Court Declines to Hear, Strike Assault Weapon Ban

The Supreme Court today declined to hear an appeal upholding an assault-weapon ban against a Second Amendment challenge. The action, a denial of cert., means that Highland Park's ban on assault weapons stays on the books, even though the decision says nothing on the merits.

The case, Friedman v. City of Highland Park, involved a Second Amendment challenge to Highland Park's ban on semi-automatic firearms. The Seventh Circuit upheld the ban. That court, frustrated with the lack of guidance on the question, devised and applied this test:

[W]hether a regulation bans weapons that were common at the time of ratification or those that have "some reasonable relationship to the preservation or efficiency of a well regulated militia," and whether law-abiding citizens retain adequate means of self-defense.

The Seventh Circuit said that the ban didn't run afoul of this test, because assault weapons weren't common at the time of ratification; they had no reasonable relationship to the preservation or efficiency of a well regulated militia; and law-abiding citizens had other options for self-defense (handguns and long-guns). The court went on to say that regulation of assault weapons really ought to go "through the political process and scholarly debate" and not by judges "parsing ambiguous passages in the Supreme Court's opinions."

While the Supreme Court didn't see fit to intervene and reconsider this ruling, the Seventh Circuit's approach didn't sit well at all with Justices Thomas and Scalia. They dissented from the denial of cert., arguing that the Seventh Circuit's test "eviscerate[d] many of the protections recognized in Heller and McDonald." Justice Thomas dissected the Seventh Circuit's test and wrote that each part of it--commonality at the time of ratification, preservation of a militia, and self-defense alternatives--undermined Heller and McDonald. The upshot: "I would grant certiorari to prevent the Seventh Circuit from relegating the Second Amendment to a second-class right."

Again, the Court's denial of cert. says nothing on the merits. But it leaves Highland Park's regulation and the Seventh Circuit's opinion both on the books. With just two justices dissenting, it looks like either (1) the Court's not yet ready to revisit the Second Amendment, or (2) it's content with the Seventh Circuit's approach.

December 7, 2015 in Cases and Case Materials, News, Second Amendment | Permalink | Comments (0)

Monday, October 19, 2015

Second Circuit Upholds Bulk of Gun Restrictions Against Second Amendment Challenges

In its extensive opinion in the consolidated cases of  New York State Rifle and Pistol Ass'n v. Cuomo and  The Connecticut Citizens' Defense League v. Malloy, a panel of Second Circuit substantially upheld gun restrictions passed by New York and Connecticut subsequent to the December 2012 "mass murders at Sandy Hook Elementary School in Newtown, Connecticut." The court largely affirmed the district judge's opinion finding the bulk of New York's SAFE Act constitutional.

The central challenge was a Second Amendment one and the court applied the two-step inquiry that is becoming accepted throughout the circuits.

The first question is whether the government restriction burdens conduct protected by the Second Amendment: the Second Amendment protects only “the sorts of weapons” that are (1) “in common use” and (2) “typically possessed by law‐abiding citizens for lawful purposes.”

If so, the court then moves to the second inquiry, determining initially the "level of scrutiny" to be applied by considering two factors: (1) “how close the law comes to the core of the Second Amendment right” and (2) “the severity of the law’s burden on the right.”  After determining the level of scrutiny - - - here, intermediate scrutiny - - - the court then applies the standard asking "whether the statutes at issue are 'substantially related to the achievement of an important governmental interest.'"
 
Affirming the respective district judges, the Second Circuit upheld the constitutionality of state prohibitions on semiautomatic assault weapons and large‐capacity magazines.  The Second Circuit held that Connecticut's specific prohibition on the non‐ semiautomatic Remington 7615 and New York's "seven‐round load limit" violated the Second Amendment.
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The court also considered several due process vagueness challenges to specific provisions in the laws, reversing the conclusion of the New York federal district judge that certain provisions - - - pertaining to “versions” and “muzzle breaks”- - - were unconstitutionally vague.
 
The Second Circuit's opinion is closely reasoned and well within what is becoming the standard within all the circuits.  Although the opinion several times mentions the absence of clear United States Supreme Court precedent - - - reminding that neither District of Columbia v. Heller (2008) nor McDonald v. City of Chicago (2010) "delineated the precise scope of the Second Amendment or the standards by which lower courts should assess the constitutionality of firearms restrictions" - - - this should not be a case that the Second Circuit would be moved to reconsider or that the Supreme Court would find worthy of review - - - unless a ban on the possession of automatic assault weapons should be subject to strict scrutiny under the Second Amendment.
 

October 19, 2015 in Due Process (Substantive), Opinion Analysis, Second Amendment | Permalink | Comments (1)

Monday, September 21, 2015

D.C. Circuit Upholds Part, and Strikes Part, of Long Gun Registration Law

A divided panel of the D.C. Circuit today upheld portions of the D.C. long-gun registration law, even as the court struck other portions. The mixed ruling has a little for both sides in the debate over gun rights.

This case follows previous rulings in which the court upheld handgun registration requirements and a ban on assault weapons and magazines with a capacity in excess of 10 rounds.

The court applied its familiar two-part framework, asking first whether a provision impinges on a right protected by the Second Amendment, and, if so, second whether the provision satisfies intermediate scrutiny. Here are the results:

Basic Registration: Upheld. The court said that a basic registration requirement for long-guns did not impinge on Second Amendment rights, and therefore didn't even trigger intermediate scrutiny. The court followed its own ruling on registration of handguns, saying that the only difference between the two is the "historical pedigree" of registration requirements for handguns (which registration for long-guns lacks).

The court held that all other requirements, below, did infringe on Second Amendment rights, and therefore applied intermediate scrutiny (with different results):

In-Person Registration, Fingerprinting, and Photographing: Upheld. The court held that an in-person registration requirement, a fingerprinting requirement, and a photograph requirement for an application for a long-gun license were all sufficiently tailored to meet D.C.'s interest in public safety. The court said that these requirements would "help to deter and detect fraud and thereby prevent disqualified individuals from registering firearms" and (as to the photograph requirement) "facilitat[e] identification of the owner of a registered firearm during any subsequent encounter with the police." "The additional requirement that registrants appear in person to be photographed and fingerprinted is but a corollary necessary to implement those requirements."

Bringing the Firearm to Registration: Struck. The court said that the requirement that an applicant bring the firearm to registration was not tailored to promote public safety. "On the contrary, common sense suggests that bringing firearms to the MPD would more likely be a threat to public safety . . . ."

Re-registration Every 3 Years: Struck. The court held that D.C.'s requirement to re-register every three years was not sufficiently tailored to promote public safety, because officials can already conduct background checks on permit holders (without re-registration), the regular registration process should take care of firearms transfers, and D.C. law already requires owners to report lost weapons (obviating the need to use the re-registration process to locate lost or stolen weapons).

Registration Fees: Upheld. The court upheld reasonable registration fees, $13 per firearm and $35 for fingerprinting.

Education Requirements: Upheld and Struck. The court upheld training requirements going to the safe use of firearms, but it struck a testing requirement on D.C. gun laws as not sufficiently tailored to promote public safety.

One Pistol Per Month Rule: Struck. The court struck this limit, because D.C.'s evidence failed to show that it would promote public safety. Moreover, "taken to its logical conclusion, that reasoning [limiting registrations in order to limit firearms present in the home, in order to promote public safety] would justify a total ban on firearms kept in the home."

Judge LeCraft Henderson wrote separate and would have upheld all the requirements under intermediate scrutiny.

 

September 21, 2015 in Cases and Case Materials, Fundamental Rights, News, Opinion Analysis, Second Amendment | Permalink | Comments (0)

Wednesday, August 19, 2015

Missouri Court Upholds Ban on Felon Gun Possession

The Missouri Supreme Court ruled this week that the state's ban on felon gun possession did not violate the state constitutional right to bear arms. The ruling is notable, because it applied strict scrutiny, but nevertheless upheld the gun possession restriction.

The Missouri Constitution, article I, section 23, read as follows (at the time of the defendant's conviction for possessing a gun in violation of the state's ban on felon possession):

That the right of every citizen to keep and bear arms in defense of his home, person, and property, or when lawfully summoned in aid of the civil power, shall not be questions; but this shall not justify the wearing of concealed weapons.

But the provision was amended during the appeal. The amended provision added "ammunition, and accessories typical to the normal functioning of such arms" to the right to keep and bear arms; it added "family" to the list of things that a citizen can bear arms to protect; it struck the limitation on concealed carry; and it added language strengthening the right (explicitly subjecting it to strict scrutiny), but permitting restrictions on felons and individuals adjudicated by a court to be a danger to self or others because of a "mental disorder or mental infirmity."

Still, the court said that the previous provision applied, because the defendant was convicted before the amendment took force.

The court held that under article I, section 23, strict scrutiny applied to restrictions on gun possession. But the state's ban on felon possession satisfied even that highest level of constitutional review:

The State has a compelling interest in ensuring public safety and reducing firearm-related crime. Prohibiting felons from possessing firearms is narrowly tailored to that interest because "[i]t is well-established that felons are more likely to commit crimes than are other law abiding citizens."

The ruling means that there are possession restrictions that satisfy strict scrutiny under Missouri state con law--at least the old Missouri state con law. It's not clear how far this might extend, however, given that the new version of article I, section 23, goes to lengths to specify that strict scrutiny applies to possession restrictions and lists just two specific exceptions.

August 19, 2015 in Cases and Case Materials, Comparative Constitutionalism, News, Opinion Analysis, Second Amendment, State Constitutional Law | Permalink | Comments (0)

Monday, April 27, 2015

Plaintiffs Shoot a Blank in Assault Weapon Ban Challenge

A divided panel of the Seventh Circuit today upheld a local ordinance banning assault weapons and large-capacity magazines against a Second Amendment challenge. The ruling in Friedman v. City of Highland Park means that the ordinance, by Highland Park, a Chicago suburb, stays in place for now. But this case is a good candidate for en banc and even Supreme Court review, so we likely haven't seen the end of it.

The case is full of turns. For example, Judge Easterbrook, for the majority, used history against the plaintiffs, even though opponents of gun regulation have so often used history in support of their points. He also used federalism against the plaintiffs, even though opponents of gun regulation so often look to "states' rights" in this and other areas. He turned the preservation or efficiency of a well regulated militia into a point about the states' ability to decide what weapons should be available to civilians. And finally he turned the gun-rights victories at the Supreme Court against the plaintiffs: If the plaintiffs can already possess handguns and long-guns for self-defense (as the Court has ruled, why do they also need semi-automatic weapons?

The case is also full of both social science and common sense. For example, "That laws similar to Highland Park's reduce the share of gun crimes involving assault weapons is established by the data." And, "But assault weapons with large-capacity magazines can fire more shots, faster, and thus can be more dangerous in the aggregate. Why else are they the weapons of choice in mass shootings?"

But aside from the turns, the social science, and the common sense, the case is notable for the Second Amendment rule it uses. Judge Easterbrook declined to apply any particular tier of scrutiny and instead applied this test:

[W]hether a regulation bans weapons that were common at the time of ratification or those that have "some reasonable relationship to the preservation or efficiency of a well regulated militia," and whether law-abiding citizens retain adequate means of self-defense.

Judge Easterbrook essentially said that this is the best a lower court can do when the Supreme Court has declined to set a particular level of scrutiny (or other test).

As to the requirement of a reasonable relationship to the preservation or efficiency of a well regulated militia, the court said that "states, which are in charge of militias, should be allowed to decide when civilians can possess military-grade firearms, so as to have them available when the militia is called to duty." As to whether the law allows other means of self-defense, the court noted that Highland Park residents can still use handguns and long-guns for self-defense, and that the Court said that was enough.

He even at one point went so far as to say that if Highland Park's ban only "reduces the perceived risk from a mass shooting, and makes the public feel safer as a result, that's a substantial benefit."

In wrapping up, Judge Easterbrook went even more deferential:

The best way to evaluate the relation among assault weapons, crime, and self-defense is through the political process and scholarly debate, not by parsing ambiguous passages in the Supreme Court's opinions. The central role of representative democracy is no less part of the Constitution than is the Second Amendment: when there is no definitive constitutional rule, matters are left to the legislative process.

And he went more on federalism:

Another constitutional principle is relevant: the Constitution establishes a federal republic where local differences are cherished as elements of liberty, rather than eliminated in a search for national uniformity. McDonald circumscribes the scope of permissible experimentation by state and local governments, but it does not foreclose all possibility of experimentation. Within the limits established by the Justices in Heller and McDonald, federalism and diversity still have a claim. Whether those limits should be extended is in the end a question for the Justices.

Judge Manion dissented, arguing that the "ordinance infringes upon the rights of . . . citizens to keep weapons in their homes for the purpose of defending themselves, their families, and their property."

April 27, 2015 in Cases and Case Materials, Fundamental Rights, News, Opinion Analysis, Second Amendment | Permalink | Comments (0) | TrackBack (0)