by Dave Kopel - Monday, July 27, 2015
Since the Supreme Court’s decisions in Heller and McDonald, the Second Amendment has become part of normal constitutional law. Like the First Amendment, the Second Amendment was once largely ignored by federal courts, but today cases involving gun rights are standard fare in those courts. Here are several federal cases that show how the federal trial courts are following the Supreme Court’s lead to enforce the right to keep and bear arms.
Illinois Ass’n of Firearms Retailers v. City of Chicago
After the Supreme Court struck down the Chicago handgun ban in the 2010 case McDonald v. Chicago, the city council repealed the handgun ban, but replaced it with many other laws designed to suppress the Second Amendment. Among other things, the new ordinances prohibited having more than one loaded gun in the home, per licensed gun owner. Further, all gun stores were outlawed within city limits. So were all gun transfers. So you could not even lend a handgun to a family member or a friend for an afternoon.
The NRA promptly supported a lawsuit, using the renowned constitutional litigation firm of Cooper & Kirk. Under the pressure of the lawsuit, the Chicago city council repealed the limit on loaded guns at home. But Chicago Mayor Rahm Emanuel’s government fought to preserve the citywide ban on gun sales and transfers.
U.S. District Court Judge Edmond E. Chang ruled the sales and transfer prohibitions unconstitutional. He pointed out that the ban “prevents Chicagoans from fulfilling, within the limits of Chicago, the most fundamental prerequisite of legal gun ownership—that of simple acquisition.”
Chicago argued that some people who have gun stores illegally sell firearms to known criminals. Chang responded: “The potential threat that some otherwise-legitimate businesses may break the law cannot justify the drastically overinclusive step of banning the entire category of legitimate businesses.” As he pointed out, the “subset” of criminal dealers “can be addressed by other, more focused approaches, such as law-enforcement operations that target dealers who would sell to straw purchasers.”
Another Chicago justification for the local ban was that “inner-city gang members and criminals find it hard to travel to the suburbs,” because they have “to cross rival gang boundaries.”
But “these transaction costs are also borne by law-abiding residents,” who “may suffer many of the same dangers by crossing into gang-infested territory,” Chang observed. “… the Second Amendment is becoming part and parcel of ‘everyday’ constitutional law. Lower federal courts treat Second Amendment cases seriously, just as they do other Bill of Rights cases.”Moreover, Chang continued, as Chicago’s own evidence showed, “Legitimate firearms retailers play a minor and unimportant role as direct sources of the criminal handgun supply.”
While Chicago had a legitimate interest in preventing burglars from stealing gun store inventory, the city can “pass more targeted ordinances aimed at making gun stores more secure—for example, by requiring that stores install security systems, gun safes or trigger locks.” Likewise, stores could be zoned for only certain parts of the city.
As for the ban on private gifts, the city had failed to offer “any study or evidence” for such an unusual and draconian restriction.
The case’s citation is Illinois Ass’n of Firearms Retailers v. City of Chicago, 961 f.Supp.2d 928 (Northern District of Ill. 2014).
Gowder v. City of Chicago
Another Chicago case, Gowder v. City of Chicago, involved Chicago’s lifetime ban on gun licenses for anyone who was convicted of “unlawful use” of a firearm. In 1995, Shawn Gowder had been convicted of unlawfully carrying a handgun. At the time, there was no legal means in Illinois for a person to obtain a permit to carry.
Cooper & Kirk filed an amicus brief supporting Gowder, on behalf of the Illinois State Rifle Association. Judge Samuel Der-Yeghiayan ruled that Gowder had a right to a home gun possession license. He based his decision on “text, history and tradition.” The bans were not “reasonable time, place and manner restrictions.” Rather, they allowed banning “conduct that is at the very core of the Second Amendment at a time when the need for self-defense may be at its very greatest.”None of these factors supported banning home gun possession for people like Gowder, who were not “risky or violent.” Lifetime gun bans were legitimate for persons convicted of domestic violence, but not for Gowder, who had never been illegally violent. Chicago’s “indiscriminate and arbitrary” regulation violated the Second Amendment. Chicago had failed “to provide a sufficiently detailed and proper analysis specifically addressing non-violent misdemeanants.” Gowder v. City of Chicago, 923 f.Supp.2d 1110 (Northern Dist. Ill. 2012).
Bateman v. Perdue
In 1969, the North Carolina legislature enacted the Riot Control Act. Like many statutes of the time, it was based on appropriate concern about the many urban riots of 1965-68. But it was poorly drafted, and careless about civil rights.
The Act said that during a state of emergency, the government can ban “possession, transportation, sale, purchase, storage and use of dangerous weapons.”
To qualify for federal disaster relief aid, governors frequently declare states of emergency for weather conditions. For instance, a snowfall that might be classified as “typical March” in Pennsylvania might be declared an emergency in North Carolina. Studded snow tires to handle five inches of slush are not the norm in the Tarheel State.
Senior District Judge Malcolm J. Howard applied “strict scrutiny” to review the “emergency”-based gun laws. “Strict scrutiny” is normally used for judicial review of laws that infringe the core of fundamental rights—such as most restrictions on the content of speech.
The Riot Act allowed gun bans “even within one’s home.” As Howard pointed out, the Supreme Court in Heller had written that in the home, “the need for defense of self, family and property is most acute.” The Riot Act prohibitions struck “at the very core of the Second Amendment.” They were “at the far end of the spectrum of infringement on protected Second Amendment rights.”
The bans were not “reasonable time, place and manner restrictions.” Rather, they allowed banning “conduct that is at the very core of the Second Amendment at a time when the need for self-defense may be at its very greatest.”
Judge Reed O’Connor held that strict scrutiny should be applied to the “federal interstate handgun transfer ban” because it restricted “the distribution channels of legal goods protected by the Constitution to a small fraction of the total number of possible retail outlets.”Howard’s decision was handed down in March 2012. Promptly, the North Carolina legislature complied and revised the emergency powers law. The new law states that it “does not authorize prohibitions or restrictions on lawfully possessed firearms or ammunition.” Bateman v. Perdue, 881 f.Supp.2d 709 (Eastern Dist. N.C. 2012).
Mance v. Holder
Federal law allows residents of one state to buy long guns in any other state—as long as the laws of both states are obeyed. Can the federal government prohibit handgun purchases outside one’s home state? In Mance v. Holder, a federal district court in Texas said, “No.”
Plaintiff Frederic Russell Mance Jr. was an FFL dealer in Arlington, Texas. Andrew and Tracey Hanson lived in Washington, D.C. They were legally allowed to possess firearms in the District, but there are no stocking dealers there. There is only one FFL dealer in all of D.C., and for a fee of $125 per gun, he will process the shipment of firearms from outside D.C. to a D.C. resident.
The Hansons wanted to purchase a pair of handguns from Mance’s store in Texas, but federal law prohibited this. (18 U.S. Code. Section 922(b)(3).) Since 1968, it has been illegal to purchase a handgun in another state and bring it home. Instead, the handgun must be shipped to an FFL in one’s home state, and picked up there.
Judge Reed O’Connor held that strict scrutiny should be applied to the “federal interstate handgun transfer ban” because it restricted “the distribution channels of legal goods protected by the Constitution to a small fraction of the total number of possible retail outlets.”
When the federal Gun Control Act of 1968 was enacted, one of its primary purposes was to prevent prohibited persons in their home state from buying handguns in other states. But today there is no need for that provision, Howard ruled. Now, there is the National Instant Criminal Background Check System (NICS). In a few minutes, when the system is working properly, a gun store in Texas can verify that a D.C. resident is a lawful gun purchaser. The national instant check was “a narrowly tailored law” that was constitutional. The ban in interstate handgun transfers was not. “Current burdens must be justified by current needs,” explained the court. For the Second Amendment in today’s courts, plaintiffs sometimes win if they demonstrate a practical, meaningful infringement of their right to armed self-defense.The court held that not only did the interstate handgun transfer ban violate the Second Amendment, but it also violated the Fifth Amendment, which prohibits most forms of discrimination based upon a person’s state of residence. Mance v. Holder, Number 4:14–cv–539–o (Northern Dist. Texas, Feb. 11, 2015).
Taylor v. City of Baton Rouge
In Baton Rouge, La., an ordinance outlawed having a firearm in an automobile in a parking lot anywhere alcohol was sold or served. So it was against the law to have a firearm in a shopping mall parking lot if the mall included a restaurant that served beer. The U.S. District Court found this obviously unconstitutional, in a decision by Judge Brian A. Jackson. Taylor v. City of Baton Rouge, 39 f.Supp.3d 807 (Middle Dist. La. 2014).
Morris v. U.S. Army Corps of Engineers
Because of a 2009 law enacted thanks to NRA activists, it is lawful to carry firearms on U.S. Department of Interior lands, as long as one complies with the laws of the host state. But there is no statute about Army Corps of Engineers lands. The Army Corps owns huge amounts of recreational land, especially around lakes, rivers and dams.
In Morris v. United States Army Corps of Engineers, a federal district court ruled that the Corps could not ban all citizen guns on Corps recreational property. The case was brought by the Mountain States Legal Foundation, a public interest law firm.
Although constraining the decision to Corps property in Idaho, Chief Judge B. Lynn Winmill ruled that the ban infringed the “core right of self-defense.” Although “the Corps retains the right to regulate the possession and carrying of handguns on Corps property,” an “outright ban” is unconstitutional. Morris v. U.S. Army Corps of Engineers, Number 3:13–cv 00336–blw (Dist. Idaho, Oct. 13, 2014). Some language above from preliminary decision: 990 f.Supp.2d 1082 (d.Idaho 2014).
Among the aforementioned cases, two are currently being appealed: Mance v. Holder (federal ban on interstate handgun transfers) and Morris v. U.S. Army Corps of Engineers (firearms ban on Corps recreational lands). The other decisions are final: Chicago, Baton Rouge and North Carolina have complied with the mandates issued by the judge.
As all these cases show, the Second Amendment is becoming part and parcel of “everyday” constitutional law. Lower federal courts treat Second Amendment cases seriously, just as they do other Bill of Rights cases. This does not mean that Second Amendment cases always win—even when the plaintiffs have good arguments. The same is true for the Bill of Rights in general; although federal courts have been actively protecting the First Amendment since the 1930s, most First Amendment plaintiffs still lose, even today.
For the Second Amendment in today’s courts, plaintiffs sometimes win if they demonstrate a practical, meaningful infringement of their right to armed self-defense. Second Amendment litigation is important in protecting civil rights, but it is not a complete solution. Even in the post-Heller world, most of the protection of Second Amendment rights comes from legislative action, and not from the courts. This is precisely why, even with Heller in our arsenal, Second Amendment supporters must remain active during election season and while the state legislatures and Congress are in session.
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