Wednesday, December 14, 2016
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."
Tuesday, September 20, 2016
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.
Monday, August 15, 2016
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.
Thursday, June 9, 2016
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."
Thursday, March 24, 2016
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.
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.
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.
Saturday, February 6, 2016
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.
Wednesday, January 6, 2016
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:
Tuesday, January 5, 2016
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.
Monday, December 7, 2015
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.
Monday, October 19, 2015
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.”
Monday, September 21, 2015
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.
Wednesday, August 19, 2015
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.
Monday, April 27, 2015
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."
Thursday, March 26, 2015
The Ninth Circuit announced today that it would reconsider a three-judge panel's ruling striking San Diego's requirement that a person show "good cause" before obtaining a concealed carry permit. ("Good cause" means something beyond the ordinary concern for safety.)
Recall that a divided three-judge panel ruled last year in Peruta v. County of San Diego that the "good cause" requirement violated the Second Amendment. The court said that the requirement wasn't a mere regulation of the right to bear arms; instead, the requirement destroyed the core of that right. As a result, the court declined to specify a level of scrutiny and simply struck the requirement.
The ruling aligned with the Seventh Circuit, but contrasted with rulings in the Second, Third, and Fourth circuits upholding similar requirements.
Today's announcement suggests that the full Ninth Circuit may reverse the earlier panel ruling and align itself with those courts that have upheld "good cause" and similar requirements.
Wednesday, March 4, 2015
In its opinion in Fyock v. City of Sunnyvale, the Ninth Circuit upheld the constitutionality of a voter initiative, Measure C, prohibiting possession of "a large-capacity magazine," whether "assembled or disassembled" and as defined as "any detachable ammunition feeding device with the capacity to accept more than ten (10) rounds." The panel affirmed the district judge's denial of a motion for preliminary injunction agreeing that the plaintiff did not demonstrate a likelihood of prevailing on the merits.
Judge Michael Daly Hawkins, writing for the unanimous panel, employed a series of tests to conclude that the restriction survived the Second Amendment. He articulated the now-common overarching Second Amendment two-prong test, first asking "whether the challenged law burdens conduct protected by the Second Amendment”; and second, if so, what level of scrutiny should be applied. The Ninth Circuit agreed with the district judge that on the record before it, the large capacity magazine restriction burdened conduct within the ambit of the Second Amendment.
As to the level of scrutiny, the panel relied on Ninth Circuit precedent stating that "to determine the appropriate level of scrutiny, the court must consider (1) how closely the law comes to the core of the Second Amendment right; and (2) how severely, if at all, the law burdens that right." Here, the court found that while the magazine restriction "likely reaches the core Second Amendment right" given that it prohibits such magazines in the home, "its resulting impact" on the core right of self defense in the home is not severe. Thus, intermediate scrutiny was appropriate.
Finally, the court noted that in the context of Second Amendment challenges, intermediate scrutiny requires: “(1) the government’s stated objective to be significant, substantial, or important; and (2) a reasonable fit between the challenged regulation and the asserted objective.” The court found that Sunnyvale's stated interests - - -to promote public safety by reducing the harm of intentional and accidental gun use; to reduce violent crime and reduce the danger of gun violence, particularly in the context of mass shootings and crimes against law enforcement - - - were undoubtedly substantial and important. It also stated that there was a reasonable fit: Sunnyvale “submitted pages of credible evidence, from study data to expert testimony to the opinions of Sunnyvale public officials." The court held that Sunnyvale was entitled to rely on such evidence and that the district judge was not required to find that the ordinance is the least restrictive means of achieving Sunnyvale’s interest.
The opinion is a concise and excellent example of the general state of Second Amendment analysis after District of Columbia v. Heller (2008) and McDonald v. Chicago (2010), especially relevant given increasing efforts to ban large capacity magazines.
Thursday, December 18, 2014
The Sixth Circuit ruled today in Tyler v. Hillsdale County Sheriff's Department that the federal ban on gun possession by a person "who has been committed to a mental institution" violates the Second Amendment.
The ruling is the first to address this particular provision, and it's the first to strike a federal ban on a particular category of would-be gun owners. The ruling's notable, too, because it applies strict scrutiny, even as both parties agreed that intermediate scrutiny applied.
The court, using its two-step approach to Second Amendment questions, held first that the federal ban on a person "who has been committed to a mental institution," 18 U.S.C. Sec. 922(g)(4), "falls within the scope of the Second Amendment right, as historically understood." That is: while the Second Amendment historically did not protect the right to bear arms by the mentally ill, "[w]e are not aware of any other historical source that suggests that the right to possess a gun was denied to persons who had ever been committed to a mental institution, regardless of time, circumstance, or present condition." (Emphasis added.)
The court next applied strict scrutiny and held that while the government's interest was "compelling," the flat ban was not narrowly tailored to meet it. In particular, the court said that the federal government failed to fund an opt-out provision for Section 922, leaving a formerly institutionalized person without a federal opportunity to show that he or she no longer poses a danger and should no longer be covered by Section 922(g)(4). Moreover, the federal conditioned grant program--which would allow an individual to prove to his or her state the he or she is no longer dangerous and should no longer be covered by Section 922(g)(4), so long as the state participates in the federal program (about half do)--leaves a person's fundamental right to bear arms up to his or her state. That's no good. The court:
Under this scheme, whether [a person] may exercise his right to bear arms depends on whether his state of residence has chosen to accept the carrot of federal grant money and has implemented a relief program. His right thus would turn on whether his state has taken Congress's inducement to cooperate with federal authorities in order to avoid losing anti-crime funding. An individual's ability to exercise a "fundamental righ[t] necessary to our system of ordered liberty" cannot turn on such a distinction. Thus, Section 922(g)(4) lacks narrow tailoring as the law is applied to [the petitioner].
The court struck the provision even as it recognized that no other court has struck any other ban on guns for any other category of person under Section 922(g)(4). In particular, the court recognized that no court has struck a ban on guns for undocumental aliens, domestic-violence misdemeanants, persons under a certain age, persons subject to certain domestic-protection orders, and persons who are "an unlawful user of or addicted to any controlled substance." The court distinguished the committed-to-a-mental-institution category, however, because "its prohibition is permanent; it applies potentially to non-violent individuals; it applies potentially to law-abiding individuals; and it punishes potentially non-violent conduct."
The court surveyed the approaches to the Second Amendment in the other circuits--mostly some form of intermediate scrutiny--but applied strict scrutiny. This was surprising and unnecessary, given that both parties agreed that intermediate scrutiny applied, and, as the concurrence argued, the petitioner would have won under intermediate scrutiny, too.
According to the court's analysis, Congress could avoid the result simply by funding the federal opt-out program and giving previously institutionalized individuals an opportunity to show that they are no longer dangerous and should no longer be subject to the ban in Section 922(g)(4).
Thursday, July 3, 2014
The Louisiana Supreme Court this week upheld the state's prohibition on the possession of firearms by convicted felons against a challenge that the law violated the state's gun-rights amendment. The court described the prohibition as "effective, time-tested, and easily understandable," and said that "[c]ommon sense and the public safety allow no other result."
Lousisiana's gun-rights amendment is notable because it explicitly sets strict scrutiny as the standard for laws infringing on the right to keep and bear arms:
The right of each citizen to keep and bear arms is fundamental and shall not be infringed. Any restriction on this right shall be subject to strict scrutiny.
Article I, Section 11. Louisiana voters enacted the amendment to ensure that laws regulating guns are subject to the strictest standard of review (and not some lower standard that the courts might have used under the Second Amendment and Heller.) The previous version of the state constitution read, "The right of each citizen to keep and bear arms shall not be abridged, but this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person."
The court, with little analysis, concluded that Louisiana's law banning the possession of guns by convicted felons for a period of 10 years after their release met strict scrutiny. The court said that the state had a compelling interest in public safety, and that this ban was easily narrowly tailored to meet that interest (again, with little serious analysis). The court also looked to legislative history of the amendment that suggested that the amendment wouldn't affect gun laws already on the books at the time of the amendment.
The court's cursory analysis (under strict scrutiny, no less) says that certain gun restrictions get a free pass, and that provisions like Louisiana's amendment are strong on paper but but weaker in application. It also suggests that the amendment, with its strict scrutiny test, bit off more than it can chew.
Tuesday, May 20, 2014
Michael Waldman, writing over at Politico, tells the story of how the NRA rewrote the Second Amendment, not through the Article V process, but through persistent and carefully calculated political action and legal argument. Over time, the NRA's position worked its way into the consciousness of politicians and judges and lawyers and ordinary people, until Heller seemed to many (and obviously most on the Court) like an inevitability. That process--and not raw legal argument, not some new and significant historical find, and certainly not a constitutional amendment--is how we got the individual right to keep and carry guns, according to Waldman.
Waldman, the president of the Brennan Center for Justice at NYU, writes on the occasion of the release of his latest book, The Second Amendment: A Biography.
Waldman's piece in Politico is as much about the political process of constitutional change as it is about the Second Amendment. In that way, it's a how-to for anyone interested in influencing the direction of constitutional law outside the amendment process, and a healthy reminder that a well organized movement can still influence the direction of American constitutional law:
So how does legal change happen in America? We've seen some remarkably successful drives in recent years--think of the push for marriage equality, or to undo campaign finance laws. Law students might be taught that the court is moved by powerhouse legal arguments or subtle shifts in doctrine. The National Rifle Association's long crusade to bring its interpretation of the Constitution into the mainstream teaches a different lesson: Constitutional change is the product of public argument and political maneuvering. The pro-gun movement may have started with scholarship, but then it targeted public opinion and shifted the organs of government. By the time the issue reached the Supreme Court, the desired new doctrine fell like a ripe apple from a tree.
Wednesday, March 26, 2014
Affirming the federal district judge, a panel of the Ninth Circuit in its opinion in Jackson v. City of San Francisco found that San Francisco's gun regulations likely survived the Second Amendment challenges and therefore the denial of the preliminary injunction was proper.
At issue were two San Francisco gun-related regulations: one that requires handguns to be stored in a locked container at home or disabled with a trigger lock when not carried on the person and the other that prohibits the sale of hollow-point ammunition within San Francisco.
The panel, as other courts have done, derived its framework from District of Columbia v. Heller, first asking whether the challenged regulations burden conduct protected by the Second Amendment and then applying the "appropriate" level of scrutiny. Because Heller (and McDonald v.Chicago which incorporated the Second Amendment against the states) left open this second inquiry, the panel - - - again following other circuits - - -then analyzed ‘how close the law comes to the core of the Second Amendment right’ and ‘the severity of the law’s burden on the right.’ The panel analogized to First Amendment principles and noted that "firearm regulations which leave open alternative channels for self-defense are less likely to place a severe burden on the Second Amendment right than those which do not." The panel applied intermediate scrutiny to the regulations.
The opinion distinguished the San Francisco gun regulation requiring safety measures from those seemingly similar District of Columbia safety measures the United States Supreme Court found unconstitutional in Heller:
Section 4512 does not impose the sort of severe burden imposed by the handgun ban at issue in Heller that rendered it unconstitutional. Unlike the challenged regulation in Heller, section 4512 does not substantially prevent law-abiding citizens from using firearms to defend themselves in the home. Rather, section 4512 regulates how San Franciscans must store their handguns when not carrying them on their persons. This indirectly burdens the ability to use a handgun, because it requires retrieving a weapon from a locked safe or removing a trigger lock. But because it burdens only the “manner in which persons may exercise their Second Amendment rights,” the regulation more closely resembles a content-neutral speech restriction that regulates only the time, place, or manner of speech. The record indicates that a modern gun safe may be opened quickly. Thus, even when a handgun is secured, it may be readily accessed in case of an emergency. Further, section 4512 leaves open alternative channels for self-defense in the home, because San Franciscans are not required to secure their handguns while carrying them on their person. Provided San Franciscans comply with the storage requirements, they are free to use handguns to defend their home while carrying them on their person.
As to the sale of hollow point bullets, the panel found that there was standing to challenge the restriction and that such ammunition was protected by the Second Amendment. But it again applied intermediate scrutiny and found the regulation survived. It reasoned that the city's regulation "imposed only modest burdens on the Second Amendment right" given "the availability of alternative means for procuring hollow-point ammunition."
The opinion is firmly rooted in current doctrine, even as that doctrine is in disarray. Earlier this month the Delaware Supreme Court held a gun restriction in public housing unconstitutional; earlier this year a district judge in Chicago held that city's gun regulations unconstitutional. The United States Supreme Court this Term has denied certiorari to several petitions seeking review of lower court cases including Fifth Circuit cases upholding a ban of sales of guns to those under 21.
Borrowing from First Amendment doctrine seems especially problematic in these cases, but understandable given the infantile state of the doctrine.