Emerging Second Amendment Jurisprudence
By Bobbie K. Ross – August 17, 2011
Everyone loves a trend. And after the Supreme Court’s decisions in District of Columbia v. Heller, 128 S.Ct. 2783 (2008), and McDonald v. City of Chicago, 130 S.Ct. 3020 (2010), the practice area of firearms law has become much more intriguing to lawyers at all levels of experience.
Most of us are familiar with the wording of the Second Amendment, which states “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. And, while we may all have an opinion on whether the right to bear arms should be treated as an “individual” or a “collective right,” the Supreme Court recently declared in Heller that the Second Amendment guarantees an individual’s right to possess a firearm unconnected with his or her service in a militia, and that individuals have the right to use firearm for traditionally lawful purposes, such as self-defense within the home. In fact, the Court said that “[t]here seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.” Heller, 128 S.Ct. at 2799.
Heller involved a Second Amendment action seeking to enjoin the District of Columbia from enforcing statutes that banned handgun possession in the home and prohibited the rendering of any lawful firearm in the home operable for the purpose of self-defense. In Heller, the Supreme Court invalidated both statutes and held that the Second Amendment conferred an individual right to keep and bear arms. See 128 S.Ct. at 2821–22.
McDonald dealt with a challenge to the handgun bans and related ordinances in the cities of Chicago and Oak Park, Illinois. After the Heller opinion was issued, several lawsuits were filed in federal court against various cities and townships in the state of Illinois that had handgun bans. One of these cities was Oak Park. The National Rifle Association (NRA) filed a case entitled NRA v. Village of Oak Park and another action against Chicago’s ordinance (NRA v. Chicago). The two NRA cases and McDonald were deemed related at the district court level but were never actually consolidated despite all three being heard by the same federal trial court judge and same Seventh Circuit Court of Appeals panel. The Supreme Court granted certiorari in McDonald and, after issuing the opinion in that case, granted certiorari in the two NRA cases and then remanded all three in light of the McDonald opinion.
In McDonald, the plaintiffs claimed that the ordinances violated their Second and Fourteenth Amendment rights.Justice Alito wrote the decision in McDonald, which held that the Second Amendment right to keep and bear arms is a fundamental individual civil right fully applicable to the states through the Due Process Clause of the Fourteenth Amendment.
In Heller and McDonald, the Supreme Court confirmed that the Second Amendment was no longer the red-headed stepchild of the Bill of Rights. But the decisions also left plenty of confusion in their wake and opened the door for a slew of lawsuits attempting to define the newly acknowledged right.
One of the primary questions left unanswered by the Supreme Court was the standard of review. Although the Court’s rulings in McDonald and Heller did not establish a level of scrutiny to be used when reviewing Second Amendment cases, they did provide some guidance.
Heller expressly rejected the rational-basis test. See Heller, 128 S. Ct. at 2818 n.27. Justice Breyer’s infamous interest-balancing test was rejected as well. See id. at 2821. By referring to the right to keep and bear arms as “fundamental,” the Court seemed to imply that strict scrutiny should be used, as is the case with other fundamental rights. See McDonald, 130 S.Ct. at 3050 (“[A] provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the Federal Government and the States. We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller”). However, the Court never actually stated a level of scrutiny to be applied
Strangely enough, one of the most important cases in Second Amendment jurisprudence—Nordyke v. King—was actually filed years before Heller or McDonald. The Nordyke case has an extremely convoluted history, but the condensed version is that it involves an Alameda County ordinance, which prohibits gun shows from taking place on the Alameda County Fairgrounds. The Nordyke family had promoted gun shows at the Alameda County Fairgrounds for years, and when the ban was passed, they sued, challenging the ordinance on multiple constitutional grounds. This case—which has played out over the last decade and still has not been finally resolved, as the Ninth Circuit’s May 2, 2011, opinion affirmed in part, reversed in part, and remanded the case back to the district court—has played a role in helping to define a level of scrutiny. The Nordyke panel applied a substantial burden test as opposed to strict scrutiny, analogizing the Second Amendment right to keep and bear arms to that of a woman’s right to obtain an abortion. Now, in all Ninth Circuit jurisdictions, regulations that substantially burden the right to keep and to bear arms will trigger heightened scrutiny under the Second Amendment.
The Nordyke panel cited to a Eugene Volokh law review article, "Implementing the Right to Keep and Bear Arms for Self-Defense", 56 UCLA L. Rev. 1443 (2009), for the idea that “it is easier to determine whether a law substantially burdens the right to bear arms than to figure out whether a law “will reduce the danger of gun crime,” and thus instructed courts within its jurisdiction to “use the doctrines generated in [the] related contexts” of abortion and content-neutral speech restrictions “for guidance in determining whether a gun-control regulation is impermissibly burdensome.” Nordyke v. King, No. 07-15763, 2011 WL 1632063 at *6. Second Amendment lawyers on both sides must now look to abortion and free speech jurisprudence to find that guidance.
The effect that the Nordyke opinion will have on the numerous lawsuits throughout the federal courts in the Ninth Circuit’s jurisdiction, many of which are (or were) stayed pending the issuance of the opinion in Nordyke, remains to be seen. There is a good chance that, as happened after Heller and McDonald, there will be even more suits filed attempting to determine what exactly constitutes a “substantial burden” on the right to keep and bear arms.
While Heller, McDonald, and Nordyke may be considered by some to be the big three of Second Amendment jurisprudence, the practice area will continue to be defined on a daily basis through ongoing litigation across the nation. This litigation seems to fall into three primary categories: challenges to restrictions on the right to carry concealed weapons (CCW), challenges to restrictions on places where firearms may be allowed, and challenges to restrictions on the groups of people allowed to carry a firearm.
Currently, the bulk of post-McDonald Second Amendment litigation appears to fall into the category of challenging restrictions on CCW.
Peruta v. County of San Diego, No. 09-cv-02371, 2010 WL 5137137 (S.D. Cal. Dec. 10, 2010), appeal docketed, No. 10-56971 (9th Cir. Dec. 16, 2010), involves a challenge by residents of San Diego County and the California Rifle & Pistol Association (suing on behalf of its members). The suit challenges the San Diego Sheriff William Gore’s CCW permit issuance policies, asserting that under the Second Amendment, self-defense must constitute “good cause” for the issuance of a CCW, and that Sheriff Gore’s requirement that an applicant demonstrate some special need or a specific threat in order to get a CCW permit is an unconstitutional restriction on the right to keep and bear arms; specifically, the right to carry a loaded firearm in public for self-defense.
Similarly, Richards v. Prieto, No. 09-01235 (E.D. Cal. filed May 5, 2009); Muller v. Maenza, No. 10-06110 (D. N.J. filed Nov. 22, 2010); Mehl v. Blanas, No. 08-15773 (9th Cir. Apr. 8, 2008);, Rothery v. Blanas, No. 09-16852 (9th Cir. Aug. 25, 2009); Peterson v. LaCabe, No. 11-1149 (10th Cir. Jan. 12, 2010); Palmer v. District of Columbia, No. 09-01482 (D.D.C. filed Aug. 6, 2009); and Birdt v. Beck, No. 10-08773 (C.D. Cal. filed Nov. 4, 2010) all challenge the CCW permit issuance policies in their respective jurisdictions.
Bonidy v. United States Postal Service, No. 10-02408 (D. Colo. filed Oct. 4, 2010), is a challenge to the U.S. Postal Service’s complete ban of firearms on postal service property. GeorgiaCarry.Org v. Georgia, No. 11-10387 (11th Cir. Aug. 13, 2010), challenges the state of Georgia’s prohibition on carrying firearms into places of worship. Baker v. Biaggi, No. 10-00426 (N.D. Nev. filed July 13, 2010), challenges restrictions on the ability to have firearms in a tent at a campground.
NRA v. McCraw, No. 10-00141 (N.D. Tex. filed Sept. 8, 2010), is a challenge to the Texas state prohibition keeping those aged 18–20 from obtaining CCW permits. Its companion case, Jennings v. BATFE, No. 10-00140 (N.D. Tex. filed Sept. 8, 2010), is a challenge to the federal ban on the ability of those aged 18–20 to purchase a handgun. Fletcher v. Haas, No. 11-10644 (D. Mass. filed Apr. 15, 2011) challenges a Massachusetts law that prohibits legal resident aliens from possessing handguns and buying ammunition. Enos v. Holder, No. 10-02911 (E.D. Cal. filed Oct. 29, 2010), is a challenge to the ban of Second Amendment rights of those convicted of misdemeanor domestic violence.
While the cases mentioned above do not constitute an exhaustive list of all Second Amendment–related cases in the country, it is clear that (for the time being, at least) the trend of firearms law being the new “it” practice area after McDonald will continue. However, if not handled carefully, firearms cases can be a minefield for the unwary or inexperienced practitioner—especially in states such as California where the laws governing firearms and ammunition are complicated at best and insurmountable at worst. Firearms cases are not simple or cheap to litigate and can require substantial financial and human resources. Any attorney considering filing a case to enforce rights under the Second Amendment would be wise to consult with other counsel with experience in the area of firearms law. Well-intentioned newcomers can easily do more harm than good. The individual and collective rights of Second Amendment advocates everywhere may depend on it.
Bobbie K. Ross is an attorney with the firm Michel & Associates, P.C. in Long Beach, California.