Saturday, July 28, 2018
A sharply divided three-judge panel of the Ninth Circuit ruled this week that Hawaii's restriction on the open carrying of firearms violates the Second Amendment.
The ruling fills a gap--and is in tension with--the en banc Ninth Circuit's previous say-so in Peruta II that the Second Amendment doesn't protect concealed carry. (Ninth Circuit law now says the Second Amendment protects open carry, but not concealed carry.) For that reason, the case is primed for en banc review.
The case, Young v. Hawaii, tested Hawaii's limitation on the open carry of firearms to those "engaged in the protection of life and property." The court first said that open carry "falls within the core of the Second Amendment." This required some careful navigating around the en banc court's prior ruling in Peruta II, and even taking that ruling on. The court, after surveying and glossing the history, simply concluded that "even though our court has read these cases to exclude concealed carry from the Second Amendment's protections, the same cases command that the Second Amendment must encompass a right to open carry."
The court went on to say that Hawaii's restriction fails at any level of scrutiny:
Restricting open carry to those whose job entails protecting life or property necessarily restricts open carry to a small and insulated subset of law-abiding citizens. Just as the Second Amendment does not protect a right to bear arms only in connection with a militia, it surely does not protect a right to bear arms only as a security guard. The typical, law-abiding citizen in the State of Hawaii is therefore entirely foreclosed from exercising the core Second Amendment right to bear arms for self-defense. It follows that [Hawaii's restriction] "amounts to a destruction" of a core right, and as such, it is infirm "[u]nder any of the standards of scrutiny."
The ruling drew a sharp dissent, on all points. Between that, and the tension with Peruta II, this isn't the last we'll see of this case. Look for en banc review.
Monday, April 9, 2018
Judge William G. Young (D. Mass.) last week rejected a Second Amendment challenge to Massachusetts's assault weapon ban. Judge Young held that covered rifles fell outside the Second Amendment and thus enjoyed no constitutional protection.
The case, Workman v. Healey, tested the state's ban on assault weapons and large-capacity magazines. The state ban was styled on the federal assault weapons ban, but, unlike Congress, the Massachusetts Legislature made the ban permanent. Plaintiffs sued in early 2017, arguing that the ban violated the Second Amendment.
The court disagreed. Judge Young wrote that the banned weapons fell outside the core of the Second Amendment and enjoyed no constitutional protection. He declined to apply any level of scrutiny and simply upheld the ban. The court explained:
Consequently, "Heller . . . presents us with a dispositive and relatively easy inquiry: Are the banned assault weapons and large-capacity magazines 'like' 'M-16 rifles,' i.e., 'weapons that are most useful in military service,' and thus outside the ambit of the Second Amendment?" The undisputed facts in this record convincingly demonstrate that the AR-15 and [large-capacity magazines] banned by the Act are "weapons that are most useful in military service." As a matter of law, these weapons and [large-capacity magazines] thus fall outside the scope of the Second Amendment and may be banned.
The court rejected the plaintiffs' argument that the AR-15 is a popular firearm, and therefore enjoys Second Amendment protection:
Yet the AR-15's present day popularity is not constitutionally material. This is because the words of our Constitution are not mutable. They mean the same today as they did 227 years ago when the Second Amendment was adopted. The test is not the AR-15's present day popularity but whether it is a weapon "most useful in military service."
Judge Young went on to quote Justice Scalia from Scalia Speaks.
The court also rejected the plaintiffs' claims that the ban is vague (because it doesn't define what "copies or duplicates" of assault weapons means) and that enforcement violated the Ex Post Facto Clause (because the state attorney general issued a notice that could punish existing ownership of banned weapons).
Tuesday, March 27, 2018
Monday, March 26, 2018
Check out Chris Schmidt's piece in the Washington Post earlier this month on student activism, from the lunch-counter sit-ins to gun control.
Prof. Schmidt also recently published The Sit-Ins: Protest and Legal Change in the Civil Rights Era with the University of Chicago Press.
Monday, March 12, 2018
The Tenth Circuit last week ruled that officers enjoyed qualified immunity against an open-carrying-plaintiff's claims that they detained him in violation of the Second Amendment and prevented him from recording their actions in violation of the First Amendment.
While the ruling goes only to qualified immunity, it underscores that there's no clearly established right to open carry under the Second Amendment, and no clearly established right of a detainee to record police officers in public. More generally, the ruling also illustrates just how stingy qualified immunity can be in protecting officers from constitutional tort claims.
The case, Sandberg v. Englewood, Colorado, arose when officers responded to a 911 call in which a caller reported "some form of workplace violence" after observing Westin Sandberg openly carrying his 9-millimeter Ruger on the streets of Englewood. The officers detained Sandberg and determined that there was no basis for the "workplace violence" allegation. But they continued to detain him--for four hours total--while they determined whether they could charge him with anything else. Finally, the officers wrote a summons for disorderly conduct. (Colorado's disorderly conduct statute says: "A person commits disorderly conduct if he or she intentionally, knowingly, or recklessly . . . displays a deadly weapon . . . .") They also took his gun, holster, bullets, and magazine. Four months later, the prosecutor dropped the charge, and, a month after that, returned Sandberg's property to him.
Sandberg sued, alleging violations of his First, Second, and Fourth Amendment rights, and gun-rights under the Colorado Constitution.
The Tenth Circuit rejected the federal constitutional claims, holding that the officers and prosecutor enjoyed qualified immunity. As to Sandberg's Second Amendment claim, the court said that there was no clearly established right to carry a gun in public. The court said that Justice Thomas's dissent to a denial of cert. in Peruta v. California and the Seventh Circuit ruling in Moore v. Madigan weren't enough, given that Justice Thomas's dissent carries no legal weight, and that the Seventh Circuit is the only circuit to hold that the Second Amendment encompasses a right to carry in public.
As to Sandberg's First Amendment claim, the court said that while some other circuits have held that the First Amendment protects the act of recording police officers' public conduct, they either post-dated the events in this case or involved a third-party recording the police (and not, as here, the detainee himself filming the police). Because there's no case-law on all fours, the court ruled that the law wasn't clearly established, and that the officers therefore enjoyed qualified immunity.
Lacking federal question jurisdiction, the court sent Sandberg's Colorado Constitutional claim back to the district court with instructions to dismiss.
While the case isn't (directly) a ruling on the merits, it does illustrate just how hard it can be to succeed on a constitutional tort claim against officers' qualified immunity. The qualified immunity doctrine allows courts to look first (and only) at whether a right is "clearly established" (without ever actually engaging the right itself). Moreover, in judging the "clearly established" question, the doctrine practically requires circuit precedent, or precedent from a majority of sister circuits, on all fours with the rights claim in the particular case. Because this is so hard to show--especially in cases involving relatively new rights claims, as here, which, because of their newness, simply haven't been litigated a lot--there's a weighty thumb on the scale in favor of qualified immunity, and against civil rights plaintiffs.
Thursday, March 8, 2018
Friday, February 23, 2018
In its opinion in New York State Rifle & Pistol Ass'n v. City of New York, a unanimous panel of the Second Circuit, affirming the district judge, rejected a constitutional challenge to a New York City regulation regarding "premises license" for a handgun. Under 38 RCNY § 5-23, a person having a premises license “may transport her/his handgun(s) directly to and from an authorized small arms range/shooting club, unloaded, in a locked container, the ammunition to be carried separately.” The definition of "authorized" range/shooting club, however, includes a limit to facilities located in New York City and is the essence of the plaintiffs' challenge. The New York State Rifle & Pistol Ass'n, as well as three individual plaintiffs, argued that this limitation is unconstitutional pursuant to the Second Amendment, the dormant commerce clause, the right to travel, and the First Amendment. Their specific arguments centered on the two instances: that one plaintiff was prohibited from taking his handgun to his second home in Hancock, New York; and that all plaintiffs wanted to take their handguns to firing ranges and competitions outside of New York City.
On the Second Amendment challenge, the opinion for the panel by Judge Gerald Lynch tracked the analytic structure articulated by the Second Circuit in New York State Rifle & Pistol Ass'n v. Cuomo, decided in 2015. Assuming that the Second Amendment applied, the court concluded that intermediate scrutiny was the appropriate standard based on its analysis of 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.' " The court found that the prohibition of a plaintiff from taking the handgun to his second home was not a substantial burden: he could have a handgun at his second home if he applied to that county and noted that the plaintiff did not even estimate the money or time it would cost to obtain a second premises license and handgun. Likewise, the court found that limiting their training opportunities to New York City - - - given that there are at least 7 training facilities in New York and one in each borough - - - was not a substantial burden. Moreover, "nothing in the Rule precludes the Plaintiffs from utilizing gun ranges or attending competitions outside New York City, since guns can be rented or borrowed at most such venues for practice purposes."
In applying intermediate scrutiny, the court found that public safety was an important interest served by the regulation. The court referred to a detailed affidavit by the Commander of the License Division who
explained that premises license holders “are just as susceptible as anyone else to stressful situations,” including driving situations that can lead to road rage, “crowd situations, demonstrations, family disputes,” and other situations “where it would be better to not have the presence of a firearm.” Accordingly, he stated, the City has a legitimate need to control the presence of firearms in public, especially those held by individuals who have only a premises license, and not a carry license.
Additionally, the city had an interest in enforcing the premises license - - - which again is distinct from a carry license - - - and under a prior rule allowing transport to ranges outside the city the Commander's affidavit concluded this had made it “too easy for them to possess a licensed firearm while traveling in public, and then if discovered create an explanation about traveling for target practice or shooting competition.”
After finding the regulations survived the Second Amendment, the court's treatment of the dormant commerce clause, right to travel, and First Amendment issues was more succinct. For both the dormant commerce clause and right to travel arguments, one of the most obvious problems in the plaintiffs' arguments was their failure to convincingly allege issues regarding crossing state lines. Under the commerce clause analysis, there was no showing that the city or state was engaging in protectionist measures and, as in the Second Amendment analysis, the plaintiffs were "free to patronize firing ranges outside of New York City, and outside of New York State; they simply cannot do so with their premises-licensed firearm." Similarly, the plaintiffs could travel, they simply could not bring their handgun licensed for a specific premises with them.
On the First Amendment, the court rejected the argument that being "forced" to join a gun club in New York City or not being allowed to join a gun club outside of the city qualified as expressive association. But even if it did, the rule does not mandate or forbid joining a specific club, again, the New York City rule "only their ability to carry the handgun that is licensed for a specific premises outside of those premises."
Thus, the Second Circuit rejected constitutional challenges that essentially sought to broaden a premises-only license into a carry-license for handguns.
Tuesday, February 20, 2018
The Supreme Court today denied certiorari in Silvester v. Becerra, the Ninth Circuit ruling upholding California's ten-day waiting period for gun purchases against a Second Amendment challenge.
The denial is a blow to gun-rights advocates. It means that the Ninth Circuit ruling and California's ten-day waiting period stay on the books.
Justice Thomas filed a lone dissent, arguing that the Ninth Circuit didn't apply sufficiently rigorous scrutiny in judging the law and that the Court has given the Second Amendment second-class status in denying review in this and other Second Amendment challenges:
Because the right to keep and bear arms is enumerated in the Constitution, courts cannot subject laws that burden it to mere rational-basis review.
But the decision below did just that. Purporting to apply intermediate scrutiny, the Court of Appeals upheld California's 10-day waiting period for firearms based solely on its own "common sense." It did so without requiring California to submit relevant evidence, without addressing petitioners' arguments to the contrary, and without acknowledging the District Court's factual findings. This deferential analysis was indistinguishable from rational-basis review. And it is symptomatic of the lower courts' general failure to afford the Second Amendment the respect due an enumerated constitutional right.
If a lower court treated another right so cavalierly, I have little doubt that this Court would intervene. But as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this Court.
Thursday, October 12, 2017
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."
Tuesday, September 19, 2017
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.
Friday, June 2, 2017
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.
Wednesday, February 22, 2017
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.
Friday, January 20, 2017
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.
Thursday, January 19, 2017
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 . . . ."
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.