Tuesday, November 2, 2021
The Supreme Court will hear oral arguments tomorrow in a critical Second Amendment case testing New York's requirement that an applicant for a public carry license demonstrate "proper cause." Here's my argument preview, from the ABA Preview of United States Supreme Court Cases, with permission:
Case at a Glance
Robert Nash and Brandon Koch both had licenses under New York law to carry a firearm outside the home for hunting and target shooting. They both asked licensing officers to expand their licenses to permit them to carry their firearms for self-defense. In each case, the licensing officer declined, although the officer permitted Koch to carry a firearm when traveling to and from work. Nash, Koch, and the New York State Rifle & Pistol Association sued, arguing that the denials and limitations violated the Second Amendment.
The Supreme Court has ruled in recent times that the Second Amendment protects an individual right to keep arms within the home for self-defense. But at the same time, it also said that the Second Amendment does not prohibit longstanding, traditionally accepted regulations of firearms. This case tests whether New York’s “proper cause” requirement for carrying a firearm outside the home for self-defense falls within those longstanding, traditionally accepted regulations, and, if not, whether it sufficiently serves New York’s interests in reducing crime and gun violence.
Does New York’s “proper cause” requirement for carrying a firearm outside the home for self-defense fall within the longstanding, traditionally accepted regulations that categorically comport with the Second Amendment, and, if not, does it sufficiently serve New York’s interests?
Under New York law, a person qualifies for a license to carry a concealed firearm outside the home if the person can show that “proper cause exists” for the license. The New York Penal Code does not define “proper cause,” but state courts have interpreted it to mean that an applicant must “demonstrate a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.” Klenosky v. N.Y. City Police Department, 428 N.Y.S.2d 256 (N.Y. App. Div. 1980). In other words, an applicant must show a “particularized” need to carry a gun, not just a “generalized desire.”
New York courts have developed “a substantial body of law instructing licensing officials on the application of [the proper-cause] standard.” Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012). The standard “requires consideration of all relevant factors,” including “the occupation, the background and the place of work” of the applicant
In most counties, a state-court judge acts as the licensing official and makes the determination; in New York City and two surrounding counties, a local police commissioner or a sheriff serves this function. The licensing official must consider all relevant factors bearing on the applicant’s “proper cause,” including the applicant’s occupation, background, and place of work, and the location where the applicant proposes to carry. An applicant can submit evidence in support of their applications; they can even submit new information to establish eligibility after a denial. An unsuccessful applicant can appeal the denial to state court.
Robert Nash and Brandon Koch both had licenses under New York law to carry a firearm outside the home for hunting and target shooting. They both asked licensing officers to lift those restrictions and to expand their licenses to permit them to carry their firearms for self-defense. Nash cited a spate of recent robberies in his neighborhood and his firearm safety training. Koch cited “his extensive experience in the safe handling and operation of firearms and the many safety training courses he had completed.”
After holding hearings, the licensing officer in each case declined to remove the restrictions, but clarified that Nash and Koch could carry arms for self-defense in certain locations. In particular, the officer wrote “that the restrictions DO ALLOW you to carry concealed [firearms] for purposes of off road back country, outdoor activities similar to hunting, for example fishing, hiking & campaign etc.” In addition, the officer wrote to Nash “that the restrictions are intended to prohibit” Nash from carrying arms for self-defense in places “typically open to and frequented by the general public.” The officer wrote to Koch that he “may also carry to and from work,” suggesting that Koch demonstrated adequate individualized safety concerns for a limited license to carry.
Nash, Koch, and the New York State Rifle & Pistol Association sued, arguing that New York’s standard violated the Second Amendment. The district court dismissed the case, and the United State Court of Appeals for the Second Circuit summarily affirmed. This appeal followed.
The Supreme Court has only ruled twice in recent times on the Second Amendment. In the first case, District of Columbia v. Heller, 554 U.S. 570 (2008), the Court ruled that the Second Amendment protects an individual fundamental right to keep a firearm in the home for self-defense. In the second case, McDonald v. City of Chicago, 561 U.S. 742 (2010), the Court held that under the Fourteenth Amendment this right applied equally against the states.
While the Court in these cases held that the Second Amendment includes an individual right to keep a firearm in the home, it did not say much about the scope of that right, or the range of permissible government regulations. The Court only said that the right, like other fundamental rights, is “not unlimited,” and that nothing in the Second Amendment would call into question “longstanding measures” like laws forbidding firearms in sensitive places, restrictions on the commercial sale of firearms, bans on dangerous and unusual weapons, and laws that prohibit certain people (like felons and people with mental disabilities) from possessing firearms.
The lower courts picked up on the focus on text, history, and tradition in Heller and McDonald and coalesced around a two-part test. The first part asks “whether the regulated activity falls within the scope of the Second Amendment.” Ezell v. City of Chicago, 846 F.3d 888 (7th Cir. 2017). A law does not infringe on the Second Amendment if it falls within one of the “presumptively lawful regulatory measures” identified in Heller (and mentioned above), if it regulates conduct that is historically outside the scope of the Second Amendment, or if it falls within a category of longstanding, accepted regulations of firearms. This step requires courts to examine the history and tradition of government regulation of the activity in question.
If the historical evidence suggests that the regulated activity is not categorically unprotected by the Second Amendment, or if the historical evidence is inconclusive, then the courts determine whether the government regulation (the means) sufficiently serve the government’s purpose (the ends). For those laws that regulate the “core” of the Second Amendment (the right to keep and bear arms within the home for self-defense), the courts apply “strict scrutiny,” the most rigorous test known to constitutional law, and almost certainly strike the law. For those regulations that fall outside the “core” of the Second Amendment (laws that touch on the right to keep and bear arms, but don’t directly prohibit a person from keeping a firearm in the home for self-defense), courts apply “intermediate scrutiny.” Under this test, the government regulation must be substantially related to an important government purpose. Some regulations pass; others don’t.
Against this backdrop, the plaintiffs argue first that the Second Amendment includes a fundamental right to carry a firearm outside the home for self-defense, and that New York’s “proper cause” standard violates this right. In support, the plaintiffs point to the plain text of the Second Amendment. They say that the text protects the right not only “to keep” arms in the home, but also to “bear arms” outside of the home. They contend that this makes sense, given that their need for self-defense extends outside the home.
The plaintiffs also point to the history of the Second Amendment. They assert that the English right to bear arms (which spawned the Second Amendment) protected a right “to carry ordinary arms for a range of lawful purposes, chief among them self-defense.” They claim that this right only grew when it migrated to the United States. They contend that “[c]arrying arms was commonplace in early America, and it was regarded as an exercise of the fundamental, inherent right to every individual to defend himself.” The plaintiffs say that our experience after the Civil War (when we adopted the Fourteenth Amendment, which, the Court later ruled, applied the Second Amendment to the states) confirms this. In particular, they claim that federal officials “insisted that securing [freedmen’s] Second Amendment rights was critical to ensuring that they could protect themselves” from racially motivated atrocities, and that this “belief was premised on the understanding that the Second Amendment guaranteed the right to carry arms outside the home for self-defense.”
The plaintiffs argue that New York’s “proper cause” standard violates this right. They claim that the standard effectively reserves the right for those “happy few” who can satisfy the rigorous standard, but denies it to all others. They also contend that the loose standard puts too much discretion in the hands of officials who determine whether an applicant satisfies it. They say that the requirement cannot meet “any of the standards of scrutiny that the Court has applied to enumerated constitutional rights”—either strict scrutiny or intermediate scrutiny—and that it is therefore unconstitutional.
New York counters that the text, history, and tradition around the Second Amendment show that New York’s requirement comports with the Second Amendment, and that the conditions on Nash’s and Koch’s licenses are valid. The state says that the Second Amendment right to keep and bear arms for self-defense does not mean that individuals can carry firearms anywhere and anytime; instead, “[l]ike all constitutional rights, the right to carry firearms incorporates the limitations embedded within the ‘historical understanding of the scope of the right.’” Moreover, the state claims that government officials have historically enjoyed broad discretion to determine when and where a person can carry a firearm, “and to restrict the carrying of concealable firearms, particularly in populous areas.” And it contends that its current law “is less restrictive than its historical antecedents, and thus does not violate any historically rooted constitutional norms.” New York asserts that many historical public-carry laws would not have allowed Nash and Koch to carry their firearms in public as widely as the state did here. The state writes that “no jurisdiction would have allowed what petitioners seek: the right to carry a handgun everywhere (or virtually everywhere)—including the crowded and populous areas of cities and towns—based on speculation that a confrontation warranting the use of deadly force might suddenly arise.” The state says that because its “proper cause” standard falls squarely within the range of traditional restrictions on the right to bear arms, it categorically complies with the Second Amendment.
But even if the Court were to scrutinize the “proper cause” standard, New York argues that it passes intermediate scrutiny, the appropriate test for this regulation. The state says that it has “compelling interests in reducing violent crime and gun violence,” and that the “proper cause” standard “substantially furthers those urgent goals, as a wealth of empirical studies confirm.” Moreover, it claims that the standard offers flexibility to allow “individuals to carry handguns in times and places for which they have established a non-speculative need for armed self-defense, hunting, or target shooting,” allowing officers to tailor restrictions specifically to meet the state’s interests.
Finally, New York argues that if the Court has any doubt whether the “proper cause” standard meets intermediate scrutiny, or any doubt about the evidence to support the intermediate scrutiny analysis (like the numbers and percentages of public-carry permits granted), then the Court should remand the case for further proceedings. According to the state, “On remand, New York could demonstrate the falsity of petitioners’ unsupported allegation that New York’s licensing regime flatly prohibits law-abiding citizens from carrying handguns in public for self-defense.”
The government filed an amicus brief in support of New York, and made substantially similar arguments. In addition, the government pointed to federal laws as examples of the types of gun regulations that legislatures may adopt, consistent with the Second Amendment.
This is only the third case to come to the Court since 2008 testing the metes and bounds of the Second Amendment. And given that the Court said very little about the Second Amendment in those earlier cases, this case will almost certainly give us much more information—including whether and how the Second Amendment applies outside the home (a question that splits the lower courts), and a determinate framework for judging Second Amendment questions.
In other words, this case will determine whether and how the Second Amendment applies outside the home, telegraph the Court’s approach to state and federal gun regulations across the board, and direct the lower courts in judging all gun regulations. All that’s to say, the stakes are, well, high.
The Court has a range of options. First, at one extreme, the Court could simply rule that New York’s “proper cause” requirement falls within the longstanding, traditionally accepted regulations that are categorically exempt from the Second Amendment. Next, as a middle position, the Court could rule that the “proper cause” requirement falls within the Second Amendment’s ambit, and that it either survives or fails at some level of scrutiny, probably intermediate scrutiny. (The Court could decline to rule on the application of intermediate scrutiny and, as New York suggests, remand the case to the lower courts for more fact-finding on this question.) Finally, at the other extreme, the Court could rule that the right to carry a firearm outside the home for self-defense falls squarely within the “core” of Second Amendment rights, and that New York’s “proper cause” requirement fails.
It seems unlikely that this Court will go with the first extreme, and much more likely that it will go with the middle position or the last extreme. Such a ruling—especially that last extreme—could give substantial support to gun-rights advocates in challenging all manner of state and federal restrictions on firearms. Whatever the Court does, though, its ruling will deeply impact the policy and politics of gun regulations and the Second Amendment going forward.
Friday, August 20, 2021
The Third Circuit ruled earlier this week that a lower court erred in dismissing a shooting-range owner's challenge to two local zoning ordinances that restrict how and where a shooting range can operate. The ruling is preliminary: it only means that the case can move forward to the merits, and that the local government, Robinson Township, Pennsylvania, has a chance to show that its zoning rules survive Second Amendment scrutiny.
The case, Drummond v. Robinson Township, tests two zoning ordinances that affect the plaintiff's gun range. The first ordinance limits gun clubs to "pistol range, skeet shoot, trap and skeet, and rim-fire rifles," and disallows center-fire rifles. The second ordinance prohibits a for-profit entity from running a shooting range in one of the Township's zoning districts, but allows them in two others.
The district court dismissed the complaint, ruling that the plaintiff failed to establish a Second Amendment case. But the Third Circuit reversed.
The court ruled first that the ordinances were subject to Second Amendment scrutiny. The court ruled that "neither type of regulation rests on deep historical foundations, so both challenged rules attract heightened scrutiny."
The court next applied intermediate scrutiny. It ruled that "[a]t the outset, there is no doubt that the ordinance promotes a substantial government interest. It aims to advance 'public health, safety and welfare.'" But it went on to say that the Township failed at this stage of the litigation to show that its ordinances were sufficiently tailored to meet that interest. It said that because the ordinances were "outliers," the wind was against them. (That's because "[w]hen a challenged law has few analogues, it raises concern 'that the [government] has too readily foregone options that could serve its interests just as well, without substantially burdening' protected conduct.'") It also said that the Township (again, at this early stage of the litigation) failed to show that it "'seriously considered' more targeted tools for achieving its ends."
The court remanded the case for further proceedings.
Monday, April 27, 2020
In a brief per curiam decision, the United States Supreme Court has declared the controversy in New York State Rifle & Pistol Association Inc. v. City of New York, New York moot.
Recall from our discussion of the oral argument that there was a substantial mootness question: the City of New York changed the regulation to allow for transport to another residence and a range or shooting club, whether or not those secondary places are within the City. Additionally, the state of New York amended its law to provide for the legality of transport. The Court had previously rejected a filed "Suggestion of Mootness" and instructed the parties to address the issue at oral argument.
Recall also that a unanimous panel of the Second Circuit, affirming the district judge, rejected a constitutional challenge to the New York City regulation regarding "premises license" for a handgun. Under the former 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.
The Supreme Court's decision vacates that previous Second Circuit judgment.
Dissenting, Justice Alito, joined by Gorsuch, and in part by Thomas, argued that the mootness determination was incorrect and "permits our docket to be manipulated in a way that should not be countenanced." After a discussion of the mootness question, Alito's dissent proceeds to the merits, arguing that the New York City ordinance violated the Second Amendment, which "is not a close question," following "directly from" District of Columbia v. Heller (2008) and later discussing McDonald v. City of Chicago (2010). Alito wrote:
In sum, the City’s travel restriction burdened the very right recognized in Heller. History provides no support for a restriction of this type. The City’s public safety arguments were weak on their face, were not substantiated in any way, and were accepted below with no serious probing. And once we granted review in this case, the City’s public safety concerns evaporated.
We are told that the mode of review in this case is representative of the way Heller has been treated in the lower courts. If that is true, there is cause for concern.
In a brief concurring opinion, Kavanaugh stated he shared Alito's
concern that some federal and state courts may not be properly applying Heller and McDonald. The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court.
In terms of "proper" application, recall that the Second Circuit panel tracked the analytic structure articulated previously by the Second Circuit. Recall that in 2015, in New York State Rifle & Pistol Ass'n v. Cuomo, the Second Circuit developed a rubric, similar to the methodologies employed by other circuits. (SCOTUS denied certiorari in that 2015 case). The first inquiry in this rubric is whether the Second Amendment is applicable. If it is, then the court determines the level of scrutiny. And finally, the court would apply that level of scrutiny. The Second Circuit in this case had 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." It held the NYC law satisfied intermediate scrutiny.
Importantly for now, the methodology for determining what level of scrutiny should be applied in Second Amendment challenges remains unresolved by the Supreme Court.
Monday, December 2, 2019
The Court heard oral argument in New York State Rifle & Pistol Association Inc. v. City of New York, New York regarding a New York City regulation that allows a person having a "premises license" — one the most restricted type of licenses — for handguns to “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,” but further defines an "authorized" range/shooting club as limited to facilities located in New York City. Recall that the Second Circuit unanimously upheld the regulation.
There is a substantial mootness question here: the City of New York changed the regulation to allow for transport to another residence and a range or shooting club, whether or not those secondary places are within the City. Additionally, the state of New York amended its law to provide for the legality of transport. The Court had previously rejected a filed "Suggestion of Mootness" and instructed the parties to address the issue at oral argument.
Arguing for the NYSRPA, a state gun-rights organization, Paul Clement broached the subject of mootness in his introduction and Justice Ginsburg asked him "So what's left of this case? The Petitioners have gotten all the relief that they sought." While Clement argued they were entitled to an injunction, the mootness issue resurfaced again and again. Arguing for the United States, supporting the gun rights organization, Principal Deputy Solicitor General Jeffrey Wall contended the named plaintiffs could be entitled to damages and thus the case was not moot. On behalf of the City of New York, Richard Dearing argued that "changes in state and city law have given Petitioners everything they asked for and, indeed, more than that," and that rather than view the City's actions "skeptically," it is a "good thing and not a cause for concern when the government responds to litigation by resolving matters through the democratic process." As to any damages claim that might be added in the future by petitioners, Dearing argued that this would be a unique support for the courts exercising Article III power.
On the merits, an underlying argument concerns the level of scrutiny suitable for evaluating the law. The Second Circuit panel tracked the analytic structure articulated previously by the Second Circuit in New York State Rifle & Pistol Ass'n v. Cuomo, decided in 2015. The Second Circuit 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 level of scrutiny to be applied to gun regulations was a question left open by the Court's decisions in District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010). Yet the oral argument did not delve deeply into this issue. Wall argued that the Second Circuit had applied a "watered-down form of scrutiny" and the correct standard is simply that the "text, history, and tradition" mandate "real protection" for the Second Amendment, seemingly always strict scrutiny.
Justice Kavanuagh, like Justice Thomas, had no questions, and whether or not the Court will dismiss the case as moot is difficult to predict, although it would seem to be a likely outcome. Note also that the Court's legitimacy should it reach the merits in this case will certainly be questioned; an amicus brief by several Senators has made that point and attracted attention.
Monday, May 20, 2019
Ninth Circuit Upholds Campaign Contribution, Firearms Ban for Foreign Nationals, Nonimmigrant Visa Holders
The Ninth Circuit last week upheld federal bans on campaign contributions and firearms possession by foreign nationals and nonimmigrant visa holders, respectively, against First and Second Amendment challenges. The ruling keeps the bans in place.
The case tested the federal ban on campaign contributions by foreign nationals. The court held first that Congress had authority impose the ban:
The federal government has the "inherent power as sovereign to control and conduct relations with foreign nations." . . . Thus, where, as here, Congress has made a judgment on a matter of foreign affairs and national security by barring foreign nationals from contributing to our election processes, it retains a broad power to legislate. . . . A prohibition on campaign donations and contributions by foreign nationals is necessary and proper to the exercise of the immigration and foreign relations powers.
The court held next that the ban didn't violate the First Amendment. The court relied on the Court's summary affirmance in Bluman v. FEC, writing that "although '[t]he precedential effect of a summary affirmance extends no further than the precise issues presented and necessarily decided by those actions,' Blumen did decide the precise issue present in this case."
As to the ban on firearm possession by nonimmigrant visa holders, the court acknowledged that there's some ambiguity about whether the law "burdens conduct protected by the Second Amendment" (the first step in the two-step Second Amendment analysis):
Some courts have read the historical right as one afforded only to citizens or those involved in the political community, while others have focused instead on an individual's connection to the United States. Nonimmigrant aliens, like those unlawfully present, are neither citizens nor members of the political community.
Still, the court assumed that the Second Amendment applied and moved to the second step, application of intermediate scrutiny, and upheld the ban:
The government's interest in this case is straightforward. The government's interest is . . . crime control and maintaining public safety. . . .
Further, the statute reasonably serves this important interest. It carves out exceptions for visa holders who are less likely to threaten public safety. . . . We find this tailoring sufficient.
Wednesday, April 17, 2019
The Seventh Circuit last week rebuffed a challenge to Illinois's law that prohibits residents of states that lack substantially similar licensing standards to even apply for an Illinois concealed-carry license. The ruling keeps Illinois's law on the books. (This is the second time the court ruled on the issue, the same way.)
The case, Culp v. Raoul, involved Second Amendment and related challenges to the reciprocal feature of Illinois's concealed-carry law. Here's how it works:
Illinois residents can apply for and receive a concealed-carry license upon a showing that the applicant isn't a public danger and, for the last five years, hasn't been a patient in a mental hospital, hasn't been convicted of certain crimes, and hasn't participated in a residential or court-ordered drug or alcohol treatment program. The state engages in an extensive background check of each applicant, and a daily check against the Illinois Criminal History Record Inquiry and the Department of Human Service's mental health system.
But for out-of-staters, the law only permits residents of states with substantially similar licensing requirements to apply for an Illinois concealed-carry license. The reason: Illinois authorities don't have access to criminal and mental health records of other states, so can't do the same kind of background check of their residents. At last count, there were just four such states; those states' residents can apply. Residents of all other states can't even apply for an Illinois concealed-carry license.
Residents of non-substantially-similar states sued, arguing that the law violated the Second Amendment, equal protection, and Article IV privileges and immunities. The court rejected those claims.
As to the Second Amendment, the court said that the law permissibly restricted out-of-staters' Second Amedment rights based on an "important and substantial" reason, enforcement of the criminal-history and mental-health standards, and that while it wasn't a perfect fit, it was close enough for intermediate scrutiny:
And the absence of historical support for a broad, unfettered right to carry a gun in public brings with it a legal consequence: the Second Amendment allows Illinois, in the name of important and substantial public-safety interests, to restrict the public carrying of firearms by those most likely to misuse them.
As to equal protection, the court noted that there's no discrimination against out-of-staters, because "Illinois's licensing standards are identical for all applicants--residents and non-residents the same." The court said that any discrimination between different states' non-residents was justified, because "Illinois has demonstrated that the substantial-similarity requirement relates directly to the State's important interest in promoting public safety by ensuring the ongoing eligibility of who carries a firearm in public. Intermediate scrutiny requires no more."
As to privileges and immunities, the court said concealed carry isn't a protected economic interest, and "we are equally unaware of a decision holding that a privilege of citizenship includes a right to engage in the public carry of a firearm, or, even more specifically, the right to carry a concealed firearm in another state." Moreover, the Clause "does not compel Illinois to afford nonresidents firearm privileges on terms more favorable than afforded to its own citizens."
The court noted that non-residents can still carry and use their firearms in the state. Just not concealed carry.
Judge Manion dissented, arguing that the law was way too rough a cut (both overinclusive and underinclusive) to meet the state's interests. "Illinois has utterly failed to show that banning the residents of an overwhelming majority of the country from even applying for a license is a 'close fit' to its goal."
Wednesday, January 30, 2019
The Eighth Circuit ruled that the Second Amendment doesn't obviously protect the right to carry a concealed weapon in a vehicle. The ruling comes on the heels of the Supreme Court's decision to take up a case that could set the level of review for Second Amendment challenges.
The Eighth Circuit ruling came in a challenge to a federal criminal conviction for felon possession of a handgun. The defendant argued that the felon-possession ban violated the Second Amendment as applied to him. (Facial challenges have failed before, and would have failed here, under Heller, which said that a ban on felon possession is "presumptively lawful.") The court said part of the defendant's as-applied challenge necessarily included his particular circumstances--including the fact that he carried his gun on the floor board under the driver's seat of his vehicle--and that the Second Amendment protects that particular conduct. The court said that the defendant didn't argue that his particular conduct (again, including the fact that his gun was under the driver's seat of his vehicle) was protected by the Second Amendment, and therefore he forfeited his challenge.
But the court wrote that even if he preserved the challenge, he would have lost: "It is not plain or obvious that the Second Amendment protects Adam's conduct. There is at least reasonable dispute about whether the Second Amendment protects a right to carry a concealed weapon in a vehicle."
Judge Kelly concurred, but argued that the defendant's as-applied challenge shouldn't have hinged on the particular fact that the gun was concealed in a vehicle. Instead, it should have looked to whether the felon-possession ban met the Second Amendment standard given the defendant's "facts about himself and his background that distinguish his circumstances from those of persons historically barred from Second Amendment protections."
Tuesday, January 22, 2019
The United States Supreme Court has granted certiorari in New York State Rifle & Pistol Association Inc. v. City of New York, New York regarding a New York City regulation that allows a person having a premises license for handguns to “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,” but further defines an "authorized" range/shooting club as limited to facilities located in New York City.
Recall that the Second Circuit unanimously upheld the regulation. 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.' " Thus, this grant of certiorari has the potential to determine the level of scrutiny to be applied to gun regulations, a question left open by the Court's decisions in District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010).
In addition to the Second Amendment issue, the petition for certiorari also challenges the regulation on the basis of the dormant commerce clause and the "right to travel." On these challenges, the Second Circuit noted that the plaintiffs did not convincingly allege there were problems implicating the crossing of state lines.
Wednesday, August 22, 2018
The Fifth Circuit last week rejected a challenge by faculty to a Texas law that allows concealed carry in public university classrooms. The ruling ends the challenge, and upholds the state Campus Carry Act and University of Texas at Austin policies permitting concealed carry.
The case, Glass v. Paxton, arose when faculty at the University of Texas challenge the Campus Carry Act and UT policies that permitted concealed carry for certain students on campus. Faculty challenged the Act under the First Amendment, Second Amendment, and Equal Protection Clause. The court rejected each of those challenges.
As to the First Amendment, the court held that the plaintiff lacked standing because she couldn't show, under the "certainly impending" standard of Amnesty International, "that a license-holder will illegally brandish a firearm in a classroom."
As to the Second Amendment, the court rejected the plaintiff's argument that the concealed carry on campus wasn't "well regulated." The court said that the "well regulated" requirement is part of the Second Amendment's prefatory clause, and that the Court in Heller ruled "that the Second Amendment's prefatory clause does not limit its operative clause."
Finally, as to equal protection, the court said that Texas's interests in the law--public safety and self-defense--were sufficient to pass rational basis review. "Here, Texas's rationales are arguable at the very least."
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.