Post-Heller Summary 3-26-13

POST-HELLER LITIGATION SUMMARY Updated April 19, 2013 I.

Introduction and Overview

The Law Center to Prevent Gun Violence is tracking litigation involving Second Amendment challenges to federal, state and local gun laws asserted in the aftermath of the United States Supreme Court’s landmark decision in District of Columbia v. Heller, 554 U.S. 570 (2008). The Law Center has examined over 600 federal and state post-Heller decisions discussing the Second Amendment in the preparation of this analysis and has a wide variety of Second Amendment resources available on our web site.

A.

Heller and McDonald

In District of Columbia v. Heller, the Supreme Court held for the first time that the Second Amendment protects a responsible, law-abiding citizen’s right to possess an operable handgun in the home for self-defense. In a 5-4 ruling, the Court struck down Washington, D.C. laws prohibiting handgun possession and requiring that firearms in the home be stored unloaded and disassembled or locked.

In Heller, the Supreme Court cautioned that the Second Amendment should not be understood as conferring a “right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose,” and identified a non-exhaustive list of “presumptively lawful regulatory measures,” including “longstanding prohibitions” on firearm possession by felons and the mentally ill, as well as laws forbidding firearm possession in sensitive places such as schools and government buildings, and imposing conditions on the commercial sale of firearms. The Court also noted that the Second Amendment is also consistent with laws banning “dangerous and unusual weapons” not in common use at the time, such as M-16 rifles and other firearms that are most useful in military service. In addition, the Court declared that its analysis should not be read to suggest “the invalidity of laws regulating the storage of firearms to prevent accidents.”

In 2010, the United States Supreme Court held in a 5-4 ruling that the Second Amendment applies to state and local governments in addition to the federal government in McDonald v. City of Chicago. As it had remarked in Heller, the Court reiterated in McDonald that the Second Amendment only protects a right to possess a firearm in the home for self-defense, and that a broad spectrum of gun laws remains constitutionally permissible.

B.

Lawsuits After Heller and McDonald

Since Heller, federal and state courts have rejected Second Amendment challenges to a wide variety of firearms laws nationwide. As discussed in Section IV below, the majority of Second Amendment challenges have been raised in criminal cases. These challenges have been largely

unsuccessful, as courts have found that the Second Amendment is consistent with numerous federal and state criminal laws.

Additionally, plaintiffs have initiated a flood of civil lawsuits since Heller, including fifty significant ongoing suits against state and local governments and the District of Columbia, and nine significant ongoing suits against the federal government. As discussed in Section III, while most civil plaintiffs’ Second Amendment claims have been as unsuccessful as those raised by criminal defendants, many of these ongoing suits seek to broadly expand the Amendment beyond the right articulated in Heller and McDonald.

Significant questions about the scope and application of the Second Amendment remain unresolved following Heller and McDonald, questions which post-Heller courts continue to confront. For more on these issues, see Section V below.

II.

Recent Developments in Second Amendment Litigation

The following significant developments have occurred in Second Amendment litigation between January 11, 2013 and March 26, 2013.

A.

Hall v. City of Chicago (N.D. Ill.): New lawsuit challenges Chicago’s restrictions on carrying firearms in public

On January 13, soon after the U.S. Court of Appeals for the Seventh Circuit issued its decision in Moore v. Madigan, two individual plaintiffs filed a new lawsuit in the U.S. District Court for the Northern District of Illinois challenging several Chicago ordinances that they allege violate the Second Amendment by prohibiting the carrying of firearms outside of the home.i Specifically, the plaintiffs are challenging one ordinance that prohibits the carrying of a handgun outside of one’s home, where “home” does not include one’s porch, garage, yard, or common areas, and a second ordinance that prohibits the carrying of long guns other than in one’s home or fixed place of business. Additionally, they are challenging related ordinances requiring a registration certificate for the carrying of a firearm and making it unlawful to carry a firearm except at the address listed on the registration certificate.

B.

United States v. Parker (E.D. Cal.): Federal district court upholds California law restricting the carrying of concealed weapons in motor vehicles

On January 22, the U.S. District Court for the Eastern District of California rejected the defendant’s argument that a national park service regulation, which makes it a misdemeanor to carry a firearm in violation of state law, violates the Second Amendment.ii The defendant had been arrested in Yosemite National Park for carrying a concealed weapon in his motor vehicle in violation of California law. Although the court declined to determine which standard of review should govern the challenge – since the Ninth Circuit has not yet agreed on a framework for reviewing Second Amendment challenges or a standard of review – it agreed with the government that rational basis review was most appropriate since California’s concealed carry law does not substantially burden 2

the Second Amendment. Nonetheless, the court found that the law would also withstand intermediate scrutiny. It explained, "the government has a substantial interest in providing for the safety of individuals who visit Yosemite National Park....Carrying in a concealed manner an accessible gun (even unloaded, but with a loaded magazine accessible) has the potential to endanger visitors and workers in Yosemite National Park. The law is reasonably designed to protect against the risk without foreclosing a citizen’s right to have in his possession a weapon and ammunition, even when both are concealed.... It does not impose a substantial burden on the right to bear arms."

C.

Commonwealth v. McGowan (Mass.): Massachusetts Supreme Court says state’s safe storage law is presumptively lawful and withstands rational basis review

On January 29, the Massachusetts Supreme Court concluded that the state's safe storage law, which requires that a firearm by secured in a locked container or bound by a trigger lock when not carried by the owner or in the owner's control, did not violate the Second Amendment. iii The court reasoned that because safe storage laws are similar to laws that regulate the commercial sale of firearms in that “[b]oth types of laws are designed to keep firearms out of the hands of those not authorized by law to possess a firearm…,” safe storage laws, like sales regulations, are presumptively lawful and thus subject only to rational basis review. Distinguishing Massachusetts’s safe storage law from the law struck down in Heller, the court said the safe storage law easily survives rational basis review. It explained that the Massachusetts law “is consistent with the right of self-defense in the home because it does not interfere with the ability of a licensed gun owner to carry or keep a loaded firearm under his immediate control for self-defense.” The court also rejected the defendant’s argument that the law violates the Second Amendment by momentarily delaying a gun owner’s ability to access his or her loaded handgun. It reasoned, “Any law regulating the storage of firearms will delay to some degree the ability of a firearm owner to retrieve and fire the firearm in self-defense. If such a brief period of delay were sufficient to render the law unconstitutional, the Supreme Court in Heller would not have declared that its analysis did not suggest the invalidity of firearm storage laws.”

D.

Commonwealth v. Reyes (Mass.): Massachusetts Supreme Court upholds state law requiring the safe storage of handguns in motor vehicles

On January 29, the Massachusetts Supreme Court rejected the defendant’s Second Amendment challenge to the state’s safe storage law.iv The defendant had been convicted of violating the statute for keeping a firearm in an unlocked glove box of his locked car while he was not occupying the car. Although the court specifically declined to decide whether Heller applies outside of the home, it explained that the storage statute does not violate the Second Amendment since the law does not apply to firearms that are not carried on or in the possession of the owner. The court explained further that since the safe storage law survives rational basis review as applied to conduct inside the home (see Commonwealth v. McGowan above), “we assume that the storage statute would also pass that low threshold in a context outside the home, where the State’s interest in preventing unauthorized access to the firearms is arguably even greater.” Importantly,

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the court also addressed the meaning of a securely "locked container" for purposes of the statute, specifically finding that a locked motor vehicle is not a locked container.

E.

Davis v. Grimes (D. Mass): New lawsuit challenges Massachusetts’s handgun carry licensing laws

On February 7, the organization Commonwealth Second Amendment and a number of individual plaintiffs filed suit in the U.S. District Court for the District of Massachusetts claiming that Massachusetts’s handgun carry licensing law violates the Second Amendment because it allows local licensing authorities to exercise discretion in issuing licenses to carry handguns in public.v F.

Peterson v. Martinez (10th Cir.): Tenth Circuit holds that concealed carry is not protected by the Second Amendment

On February 22, the U.S. Court of Appeals for the Tenth Circuit rejected the plaintiff’s claim that the residency requirement in Colorado’s concealed carry licensing law violates the Second Amendment.vi Applying a two-prong test to the Second Amendment challenge, the court determined that, under the first prong of the test, concealed carry is not protected by the Second Amendment. Thus the court did not review the challenge under any level of constitutional scrutiny.

Based upon its review of the history of concealed carry laws, it concluded that such laws are longstanding. The court also explained that Heller and McDonald “strengthen[] the statement that concealed carry restrictions do not infringe the Second Amendment right to keep and bear arms.”

G.

Moore v. Madigan (7th Cir.): Dissenting opinion provides guidance to judges addressing Second Amendment challenges and to legislators considering gun regulations

On February 22, the U.S. Court of Appeals for the Seventh Circuit rejected the defendants’ motion requesting rehearing en banc of its decision in Moore v. Madigan, in which the court struck down an Illinois law banning the carrying of firearms in public.vii Although the court did not issue an opinion explaining its decision to deny the motion for rehearing en banc, in a noteworthy dissenting opinion, three judges explained why they believed rehearing was warranted. They also provided important guidance to judges addressing future Second Amendment challenges and to legislators considering how to regulate firearms going forward. The dissent explained that the Seventh Circuit panel in Moore failed to appreciate that the possession of firearms in public poses far greater dangers than does maintaining a firearm in one’s private home. The dissent also suggested that the majority was remiss in declaring that the Second Amendment protects conduct outside of the home when the U.S. Supreme Court has not done so.

Based upon its interpretation of the majority opinion in Moore, the dissent provided the following guidance to future courts and legislators: 1) intermediate scrutiny is now the appropriate level of review for Second Amendment challenges in the Seventh Circuit; 2) Moore does not preclude regulations limiting who may carry firearms, where they may be carried, how they may be carried, or which firearms may be carried, since those specific questions were not addressed in the opinion; and 3) lower courts going forward should require the parties to establish a full and complete 4

factual record so as to ensure that “considerations are based on reliable facts rather than hypothesized and assumed facts.”

H.

In re Pantano (N.J. Super. Ct. App. Div.): New Jersey court finds that requiring a handgun carry permit applicant to show a “justifiable need” for a permit does not burden the Second Amendment

On February 22, having concluded that a New Jersey law, which requires an applicant for a handgun carry permit to show "a justifiable need to carry a handgun" in public, does not violate the Second Amendment, the Appellate Division of the New Jersey Superior Court determined that the lower court correctly denied the petitioner's application for a permit to carry a handgun based upon an insufficient showing of need.viii New Jersey regulations define "justifiable need" as "urgent necessity for self-protection, as evidenced by specific threats or previous attacks which demonstrate a special danger to the applicant's life that cannot be avoided by means other than by issuance of a permit to carry a handgun." The appellate court explained that the petitioner’s claims, that he carried large amounts of money around as part of his business, that his father had once been knifed during a robbery while conducting the same business, and that there was once a trespasser on the petitioner's property, did not rise to the level of "justifiable need.”

The court determined that the need requirement did not infringe upon the Second Amendment since New Jersey and other courts have not extended Heller's protections beyond the home. The court also noted that the Second Circuit recently upheld New York’s “proper cause” requirement for concealed carry, which is similar to New Jersey’s “justifiable need” requirement, and that in striking down Illinois’s ban on the public carry of firearms, the Seventh Circuit had distinguished the Illinois law from New York’s law.

I.

Teixeira v. County of Alameda (N.D. Cal.): Court upholds ordinance prohibiting the commercial sale of firearms in certain sensitive places, finding that the ordinance is presumptively lawful

On February 26, the U.S. Court of Appeals for the Northern District of California rejected the plaintiffs’ facial and as-applied Second Amendment challenges to an Alameda County, California ordinance that prohibits the sale of firearms within 500 feet of any school, liquor store, or residence.ix Relying on prior case law, the court concluded that the ordinance is “presumptively lawful,” meaning that it is an exception to the Second Amendment. Because it found that the plaintiffs had failed to overcome the presumptive lawfulness of the ordinance by showing that the ordinance substantially burdens the core Second Amendment right to possess a gun in the home for the purpose of self-defense, the court explained that it did not need to review the challenge under any level of scrutiny.

Nonetheless, the court suggested that the ordinance would survive even strict scrutiny and noted that the U.S. Supreme Court has not recognized any right to sell a firearm. The court further explained, “The Ordinance is precisely the kind of presumptively valid restriction envisioned by Heller – it is a restriction on gun sales and purchases in or near sensitive places. The Ordinance is

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not a total ban on gun sales or purchases in Alameda County and therefore does not implicate the core right to possess a gun in the home for self-defense articulated in Heller.”

J.

State v. Craig (Minn.): State’s highest court says felons convicted of drug crimes fall outside the scope of the Second Amendment

On February 27, the Minnesota Supreme Court published its first opinion addressing a Second Amendment challenge to the state's law prohibiting felons from possessing firearms.x The court rejected the defendant's argument that his conviction under the law violated the Second Amendment since his underlying felony, for possession of a controlled substance, was “nonviolent.” Although the court reasoned that felon possession prohibitions are “presumptively lawful,” and that a correctly situated felon may be able to overcome the presumptive lawfulness of the statute, it concluded that Craig had not done so. Reviewing the as-applied challenge under a two-prong test, the court determined, under the first prong of the test, that individuals convicted of drug felonies are not within the scope of the Second Amendment; thus, the court did not need to review the challenge under any standard of scrutiny. In conducting the scope analysis, the court explained that the “appropriate inquiry is whether the Second Amendment, as historically understood, would permit such a restriction on the right to possess a firearm, regardless of whether those laws existed at the time of the Second Amendment's ratification." The court concluded, based upon its historical analysis, that felons who have been convicted of a crime of violence are outside the scope of the Second Amendment, and moreover, that a drug crime qualifies as a crime of violence since “a substantial nexus exists between drugs and violence.”

K.

Powell v. Tompkins (D. Mass.): Court upholds state’s firearms licensing scheme and age requirement for concealed carry

On February 28, the U.S. District Court for the District of Massachusetts held that neither Massachusetts’s firearms licensing scheme, which requires a license to possess a firearm and a license to carry a firearm, nor its age requirement of 21 for a license to carry a firearm, violate the Second Amendment.xi The court explained that since neither the First Circuit nor the U.S. Supreme court had held that the Second Amendment protects the carrying of firearms outside of the home, it was “inclined to presume that the Commonwealth's regulation of firearms by means of a comprehensive licensing scheme falls within the band of governmental action allowable under the Second Amendment." However, the court noted, "Regardless, even if the First Circuit or the Supreme Court were eventually to extend such protections to the carrying of firearms, this activity would likely still be subject to certain limitations, as Heller so described."

The court upheld the age restriction for licenses to carry firearms based upon its conclusion that the restriction does not “unduly burden” the Second Amendment. Based upon its historical review of similar regulations, the court reasoned that, in the Founding Era, “regulations targeting groups of otherwise law-abiding people who were thought to be dangers to public safety,” were common.

Notably, the court also found that the restriction would survive intermediate scrutiny.

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L.

Wesson v. Town of Salisbury (D. Mass.): New lawsuit challenges a Massachusetts law that denies firearms licenses to individuals convicted of using or possessing drugs

On March 1, Commonwealth Second Amendment and two individual plaintiffs filed suit in the U.S. District Court for the District of Massachusetts challenging a Massachusetts law that prevents any individual who has been convicted in any jurisdiction of a crime involving the use, possession, or sale of a controlled substance from receiving a license to carry or purchase a firearm.xii According to the complaint, the individual plaintiffs were denied firearms licenses because they were convicted of misdemeanor possession of less than an ounce of marijuana decades before they applied for the licenses but otherwise have been law-abiding citizens. The plaintiffs are seeking a declaratory judgment that the license denials violated the Second Amendment as applied to the individual plaintiffs, and they also appear to be seeking a permanent injunction against any further enforcement of the law.

M.

Woollard v. Gallagher (4th Cir.): Fourth Circuit reverses district court judgment, upholds Maryland’s “reason” requirement for handgun carry licenses

On March 21, the U.S. Court of Appeals for the Fourth Circuit reversed a district court judgment that permanently enjoined enforcement of Maryland’s "good and substantial reason" requirement for obtaining a license to carry a handgun, and held that the requirement did not violate the Second Amendment on its face or as applied to the plaintiff.xiii The circuit court concluded that the district court had ignored and misapplied existing precedent, and it rebuked the district court for usurping the Fourth Circuit’s authority, and that of the U.S. Supreme Court, by making a "trailblazing pronouncement that the Second Amendment ...extends outside the home...." The Fourth Circuit had previously decided "to await direction from the [Supreme] Court itself," rather than determine whether the Second Amendment extends outside the home, and the court chose to follow the same course in Woollard. Thus, reviewing the constitutionality of the requirement under a two-prong test, the court declined to determine whether the “reason” requirement burdens the Second Amendment under the first prong of the test; instead, the court upheld the requirement under intermediate scrutiny, which it had previously held was the appropriate standard of review for laws affecting conduct outside of the home.

The Woollard court also criticized the district court for "purporting to apply intermediate scrutiny," explaining that the court actually appears to have applied strict scrutiny. For example, the court noted that the district court’s determination that the reason requirement did not pass constitutional muster since it did not “single-handedly safeguard the public from every handgunrelated hazard” was inappropriate under an intermediate scrutiny analysis. Additionally, the circuit court disagreed with the district court’s conclusion that the reason requirement is unconstitutional because it amounts to “a rationing system[] that does no more to combat [threats to public safety] than would a law indiscriminately limiting the issuance of a permit to every tenth applicant.” In fact, the circuit court found completely acceptable that the purpose of the reason requirement is to reduce the number of handguns in public. It explained, “At the same time that it reduces the number of handguns carried in public, however, the good-and-substantial-reason requirement

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ensures that those persons in palpable need of self-protection can arm themselves in public places where Maryland’s various permit exceptions do not apply.”

N.

New York State Rifle & Pistol Ass’n v. Cuomo (W.D. N.Y.): Lawsuit challenges numerous provisions of New York’s newly enacted “S.A.F.E. Act”

On March 21, several gun groups and individual plaintiffs filed suit in the U.S. District Court for the Western District of New York challenging numerous provisions of New York’s newly enacted firearms law.xiv The plaintiffs are arguing that provisions of the law restricting large capacity ammunition magazines and assault weapons violate the Second Amendment.

III.

Civil Litigation Raising Second Amendment Claims After Heller A.

Significant Pending Lawsuits

State and local governments – including Chicago, Denver, Honolulu, Los Angeles, New York City, San Francisco, Sacramento, San Diego, and the states of California, Colorado, Delaware, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, New York, New Mexico, Texas, and West Virginia – and the District of Columbia presently face fifty-three significant lawsuits challenging various firearms laws under the Second Amendment. Nearly half of these suits involve challenges to laws regulating the carrying of weapons in public, while others challenge registration laws, bans on unsafe handguns and assault weapons, and safe storage laws. Additionally, seven significant suits raising Second Amendment claims have been initiated against the federal government. For more information about all of the pending cases, please refer to the Post-Heller Litigation Summary Appendix at http://smartgunlaws.org/post-heller-litigation-summary/.

B.

Civil Suits Have Been Largely Unsuccessful

Generally, Second Amendment challenges by civil plaintiffs have been unsuccessful. In the wake of the Heller decision, for example, the District of Columbia adopted comprehensive firearms laws. In September 2011, the U.S. Court of Appeals for the D.C. Circuit affirmed in part and remanded in part the federal district court’s decision rejecting a Second Amendment challenge to many of those laws, including D.C.’s firearms registration system, ban on assault weapons and large capacity ammunition magazines, one-handgun-a-month law, and law requiring the reporting of lost or stolen firearms.xv Federal and state courts have also upheld laws requiring the registration of all firearms,xvi prohibiting the possession of firearms by felons xvii or by individuals who have been involuntarily committed to a mental institution,xviii requiring an applicant for a license to carry a concealed weapon to show “good cause,” “proper cause,” or “need,” qualify as a “suitable person,” xix or submit affidavits evidencing good character,xx prohibiting the issuance of a concealed carry permit based on a misdemeanor assault conviction,xxi requiring an applicant for a handgun possession license to be a state residentxxii or pay an administrative fee,xxiii requiring an applicant for a concealed carry license to be at least twenty-one years old,xxiv prohibiting the sale of firearms and 8

ammunition to individuals younger than twenty-one years old,xxv to individuals who do not reside in the state,xxvi or to individuals who does not reside in any U.S. state,xxvii prohibiting domestic violence misdemeanants from possessing firearms,xxviii prohibiting the possession of firearms in places of worship, xxix in common areas of public housing units,xxx and within college campus facilities and at campus events, xxxi and regulating gun shows held on public property.xxxii Additionally, a federal district court recently refused to enjoin enforcement of San Francisco ordinances requiring the safe storage of handguns in the home and prohibiting the sale of “particularly dangerous ammunition” that has no sporting purpose, having concluded that the plaintiffs would be unlikely to show that the ordinances violate the Second Amendment.xxxiii A Pennsylvania court also upheld a state Department of Labor and Industry regulation prohibiting firearms on property owned or leased by the Department, including in vehicles parked on Department property.xxxiv In contrast to the majority of courts that have considered challenges to similar laws, the U.S. Court of Appeals for the Seventh Circuit recently struck down an Illinois law banning the carrying of loaded and accessible firearms in public, calling the law “the most restrictive gun law of any of the 50 states.” xxxv Additional outliers include a North Carolina federal district court decision finding that a state law prohibiting the carrying of firearms during states of emergency violated the plaintiffs’ Second Amendment rights, xxxvi a Massachusetts federal district court decision finding that a U.S. citizenship requirement for possessing and carrying firearms violated the plaintiffs’ Second Amendment rights,xxxvii and an Illinois federal district court decision striking down a provision of Chicago law that prohibits the possession of firearms by anyone who has been convicted in any jurisdiction of the unlawful use of a weapon.xxxviii Notably, a North Carolina appellate court recently reversed a trial court decision striking down the state’s law prohibiting the possession of firearms by felons, but remanded the case for a determination of whether the law survives intermediate scrutiny.xxxix Additionally, several courts have cited Heller in expressing concern about state action that would limit an individual’s right to possess a firearm where that person is not prohibited by law from doing so.xl For example, a federal district court refused to dismiss a plaintiff’s suit alleging that Illinois’ licensing law violated the Second Amendment by preventing her from being able to possess a firearm for self-defense while she stayed in an Illinois friend’s home.xli Additionally, the Seventh Circuit enjoined enforcement of a Chicago ordinance banning firing ranges within city limits where range training was a condition of lawful handgun ownership.xlii IV.

Post-Heller Second Amendment Challenges by Criminal Defendants A.

Federal Firearms Statutes

Courts have almost uniformly rejected criminal defendants’ Second Amendment challenges to federal firearms laws, including challenges to laws prohibiting the provision of a firearm to a fugitive felon,xliii prohibiting the possession of a firearm by a convicted felonxliv or by anyone “employed for” a convicted felon (such as a bodyguard),xlv possession of an illegal weapon (e.g., a machine gun, a sawed-off shotgun, a weapon with an obliterated serial number, body armor, or 9

other prohibited weapon),xlvi possession in violation of a court order,xlvii possession by an illegal alien,xlviii possession in a prohibited place,xlix possession by an individual who is under indictment for a felony, l possession by an unlawful user of a controlled substance,li and possession by a domestic violence misdemeanant. lii Courts have also rejected challenges to sentence enhancements for convicted criminals who possessed firearms while engaging in illegal activity.liii Notably, a few courts have cited Heller in decisions curtailing the federal government’s ability to penalize or prohibit otherwise lawful possession of a firearm during criminal proceedings.liv Most notably, one federal district court in New York declared unconstitutional a federal law imposing a pretrial bail condition that would have prohibited the defendant from possessing firearms, although a Ninth Circuit panel directed a lower court to impose the same prohibition. lv A federal court also dismissed an indictment for aiding and abetting the possession of a firearm by a convicted felon.lvi In that case, the defendant, who was not prohibited by law from possessing guns, owned and kept a rifle in her home even though her boyfriend was a convicted felon.

Because the government’s case was based on the defendant’s possession of the firearm within her home, the court concluded, to allow the indictment to proceed “would be countenancing the total elimination of the right of a sane, non-felonious citizen to possess a firearm…in her home.”

Notably, a federal appellate court recently overturned the dismissal and remanded the case for further review.lvii B.

State and Local Firearms Laws

Most courts that have heard criminal defendants’ Second Amendment challenges to state and local laws have upheld the statutes at issue.lviii State courts have published decisions affirming state laws prohibiting the unlicensed carrying of handguns outside of the home,lix prohibiting the carrying of a concealed dirk or dagger outside of the home,lx prohibiting the carrying of a loaded and accessible firearm in a motor vehicle,lxi prohibiting convicted felons from possessing firearms,lxii prohibiting the possession of a firearm while intoxicated,lxiii authorizing the seizure of firearms in cases of domestic violence,lxiv prohibiting the possession of assault weapons and 50-caliber rifles,lxv requiring an individual to possess a license to own a handgun,lxvi and imposing a mandatory prison sentence for possession of a firearm during the commission of a crime.lxvii Notably, however, a Wisconsin trial court dismissed an indictment under the state’s former law that prohibited the carrying of concealed weapons because it found that the law violated the Second Amendment. lxviii Although the defendant was prosecuted for possessing a concealed knife while in an apartment, the court ignored relevant precedent that exempted possession in the home from Wisconsin’s concealed weapons prohibition. More recently, however, Wisconsin appellate courts have upheld the state’s former law prohibiting the carrying of concealed weapons in two separate decisions.lxix Additionally, an Ohio trial court dismissed, on Second Amendment grounds, an indictment against a defendant for possession of a firearm following a conviction for a drug crime.lxx Moreover, a Michigan appellate court struck down a former state law prohibiting the possession of tasers and stun guns, concluding that the Second Amendment protects the possession and open carrying of those devices.lxxi 10

Additionally, the District of Columbia Court of Appeals reversed a defendant’s conviction for unlawful possession of handgun ammunition, holding that the Second Amendment required the government to prove both that the defendant possessed the ammunition and that he did not possess a registration certificate for a weapon of the same caliber (where, under prior case law, proof of registration was only an affirmative defense).lxxii Separately, the D.C. Court of Appeals heard a Second Amendment challenge brought by an individual convicted of unlawful firearm possession prior to Heller. The appellant had been prosecuted for the possession of an unregistered firearm in his home, and the court remanded the case for a hearing to determine whether the appellant had, as he claimed, been in possession of the firearm for the constitutionally-protected purpose of self-defense.lxxiii More recently, a federal district court in Maine acquitted an individual from charges under federal law for failing to disclose, when attempting to purchase a firearm, that he had been involuntarily committed to a mental institution pursuant to Maine law.lxxiv The court concluded that involuntary commitment under the Maine law, which allows emergency commitment of an individual without a hearing, could not deprive an individual of future firearm rights. The court explained that, since Heller, “the right to possess arms…is no longer something that can be withdrawn by the government on a permanent and irrevocable basis without due process.”

V.

Emerging Issues A.

How Strictly Courts Should Scrutinize Second Amendment Challenges

While the Heller Court established that a law completely prohibiting a responsible, law-abiding citizen from possessing an operable handgun in the home for self-defense would violate the Second Amendment, and further held that certain other types of laws are “presumptively lawful” against Second Amendment challenges, the Court did not explain how lower courts should evaluate Second Amendment challenges going forward. The Court did, however, suggest that evaluation using the “rational basis” test – holding that a law is constitutional if it is rationally related to a legitimate government interest – was not appropriate.

Courts have summarily dismissed numerous Second Amendment challenges, concluding that the laws at issue are “presumptively lawful regulatory measures” explicitly protected in Heller.lxxv In challenges after Heller that have considered how firearms laws should be evaluated, courts have typically chosen between two levels of heightened scrutiny often applied to constitutional rights: “intermediate scrutiny,” which examines whether there is a reasonable fit between the law and an important or significant government interest, and “strict scrutiny,” which examines whether a law is narrowly tailored to achieve a compelling government interest.

Most appellate and district courts that have explicitly adopted a level of scrutiny, including Third, Fourth, Tenth, and D.C. Circuit panels, have applied intermediate scrutiny to Second Amendment challenges.lxxvi Courts have arrived at intermediate scrutiny using differing approaches, but the clear trend suggests that laws that do not prevent a law-abiding, responsible citizen from 11

possessing an operable handgun in the home for self-defense should face, and survive, an intermediate scrutiny review.

At the same time, a few courts have reviewed Second Amendment challenges under strict scrutiny.lxxvii Several other courts have explained that different types of laws can trigger different levels of scrutiny under the Second Amendment. lxxviii Several courts have held that heightened scrutiny only applies where the challenged law substantially burdens conduct protected by the Second Amendment. Most recently, a Second Circuit decision did not identify which level of scrutiny ought to apply to Second Amendment challenges, but it did hold that heightened scrutiny is only warranted if the challenged law substantially burdens the Second Amendment.lxxix In a subsequent decision, the Second Circuit concluded that intermediate scrutiny was the appropriate level of heightened scrutiny to be used for reviewing a challenge to New York’s concealed carry licensing scheme.lxxx A Ninth Circuit decision also adopted a substantial burden test for reviewing Second Amendment challenges; while that decision was subsequently vacated en banc, at least one lower court has found that it remains persuasive authority.lxxxi While intermediate scrutiny is most commonly used in Second Amendment cases, an Illinois appellate court recently applied rational basis review to uphold a state law prohibiting the carrying of guns in public.lxxxii The court reasoned that when the U.S. Supreme Court said in Heller and McDonald that rational basis review was inappropriate for Second Amendment challenges, it was referring only to challenges to the “core” Second Amendment right of a law-abiding citizen to possess a handgun in the home for self-defense. An Ohio appellate court also upheld a state law that prohibits the carrying of a loaded and accessible firearm in a motor vehicle under rational basis review.lxxxiii Similarly, a federal district court hesitated to apply intermediate scrutiny in evaluating a Second Amendment challenge, stating that “intermediate scrutiny seems excessive.” lxxxiv The court explained, “To place gun rights on the same high protected level as speech rights seems an odd view of American democratic values.” A Wisconsin appellate court recently applied a reasonableness test to uphold the constitutionality of Wisconsin’s now repealed law prohibiting concealed carry.lxxxv In contrast to those decisions, however, an appellate court in Ohio determined that the trial court had erred in applying reasonableness review to uphold a law against a Second Amendment challenge and remanded the case with instructions that the trial court apply some form of heightened scrutiny.lxxxvi In almost every case, however, regardless of the test or level of scrutiny that has been applied, the Second Amendment challenge has been rejected and the statute at issue has been upheld. Still, the scrutiny issue remains a central component of much ongoing Second Amendment litigation.

B.

Whether the Second Amendment Right Extends Beyond the Home

Another of the key questions presently being litigated in post-Heller suits is whether or to what extent the Second Amendment should apply outside of the home. In Heller, the Supreme Court held that the Amendment protects a right to possess a firearm within the home, “where the need 12

for defense of self, family, and property is most acute.” The Court emphasized that the right protected is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.” The Court also declared that laws prohibiting firearm possession in sensitive places (including schools and government buildings) were presumptively lawful.

In evaluating Second Amendment challenges related to conduct outside the home, a significant number of courts have concluded that the Amendment only protects conduct within the home. lxxxvii However, while three federal district courts in the Fourth Circuit extended the Second Amendment’s protection beyond the home, a recent Fourth Circuit decision confirmed that courts in the circuit should await direction from the Supreme Court before concluding that the Second Amendment protects conduct outside of the home.lxxxviii Additionally, the U.S. Courts of Appeals for the Second and Seventh Circuits have determined that the Second Amendment applies, or likely applies, outside the home.lxxxix Other courts have deferred the question of whether the Second Amendment applies outside the home, but have ultimately upheld restrictions on firearm possession in public places.xc Even the few courts that have suggested that some form of Second Amendment protection ought to extend outside the home have generally upheld laws restricting firearm possession in public places.xci VI.

Conclusion

Because of the Supreme Court’s decisions in Heller and McDonald, the nation’s lower courts are clogged with a substantial volume of Second Amendment litigation, despite the fact that most, if not all, federal, state and local firearms laws do not prevent a responsible, law-abiding citizen from possessing an operable handgun in the home for self-defense, and thus, would satisfy the Supreme Court’s holdings. Going forward, the gun lobby will likely continue to employ the threat of litigation to obstruct state and local efforts to enact common sense gun violence prevention measures. Policymakers should rest assured, however, that nothing in either Heller or McDonald prevents the adoption of many types of reasonable laws to reduce gun violence.

i

Hall v. City of Chicago, No. 13-00441 (N.D. Ill. Filed Jan. 18, 2013).

United States v. Parker, 2013 U.S. Dist. LEXIS 8660 (E.D. Cal. Jan. 22, 2013). iii Commonwealth v. McGowan, 982 N.E.2d 495 (Mass. 2013). iv Commonwealth v. Reyes, 982 N.E.2d 504 (Mass. 2013). v Davis v. Grimes, No. 13-10246 (D. Mass. Filed Feb. 7, 2013). vi Peterson v. Martinez, 2013 U.S. App. LEXIS 3776 (10th Cir. Feb. 22, 2013). vii Moore v. Madigan, 2013 U.S. App. LEXIS 3691 (7th Cir. Feb. 22, 2013). viii In re Pantano, 60 A.3d 507 (N.J. Super. Ct. App. Div. 2013). ix Teixeira v. County of Alameda, 2013 U.S. Dist. LEXIS 36792 (N.D. Cal. Feb. 26, 2013). x Minnesota v. Craig, 826 N.W.2d 789 (Minn. Feb. 27, 2013). xi Powell v. Tompkins, 2013 U.S. Dist. LEXIS 27695 (D. Mass. Feb. 28, 2013). xii Wesson v. Town of Salisbury, No. 13-10469 (D. Mass. Filed Mar. 1, 2013). xiii Woollard v. Gallagher, 2013 U.S. App. LEXIS 5617 (4th Cir. Mar. 21, 2013). ii

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xiv

New York State Rifle & Pistol Ass’n v. Cuomo, No. 13-00291 (W.D.N.Y. Filed Mar. 21, 2013).

Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011); See also Wilson v. Cook County, 943 N.E.2d 768 (Ill. App. Ct. 2011) (upholding Cook County, Illinois ordinance prohibiting the possession of assault weapons and large capacity ammunition magazines), reh’g granted by 949 N.E.2d 1104 (Ill. 2011). xvi Justice v. Town of Cicero, 577 F.3d 768 (7th Cir. Ill. 2009) (finding that registration “merely regulated gun possession” rather than prohibiting it), cert. denied, 177 L. Ed. 2d 323 (2010). xvii Schrader v. Holder, 704 F.3d 980 (D.C. Cir. 2013). xviii Tyler v. Holder, 2013 U.S. Dist. LEXIS 11511 (W.D. Mich. Jan. 29, 2013). xix Young v. Hawaii, 2012 U.S. Dist. LEXIS 169260 (D. Haw. Nov. 29, 2012); Kachalsky v. Cacace, 701 F.3d 81 (2d Cir. 2012); Raulinaitis v. Los Angeles Sheriff’s Dept., No. 11-08026 (C.D. Cal. Aug. 13, 2012); Birdt v. Beck, No. 10-08377 (C.D. Cal. Jan. 13, 2012); Piszczatoski v. Filko, 2012 U.S. Dist. LEXIS 4293 (D. N.J. Jan. 12, 2012); Hightower v. Boston, 693 F.3d 61 (1st Cir. 2012); Kuck v. Danaher, 2011 U.S. Dist. LEXIS 111793 (D. Conn. 2011); Richards v. County of Yolo, 821 F. Supp. 2d 1169 (E.D. Cal. 2011); Peruta v. County of San Diego, 758 F. Supp. 2d 1106 (S.D. Cal. 2010). xx Williams v. Puerto Rico, 2012 U.S. Dist. LEXIS 181402 (D.P.R. Dec. 21, 2012). xxi Kelly v. Riley, 733 S.E.2d 194 (N.C. Ct. App. Nov. 6, 2012). xxii Osterweil v. Bartlett, 819 F. Supp. 2d 72 (N.D.N.Y 2011). xxiii Kwong v. Bloomberg, 2012 U.S. Dist. LEXIS 41218 (S.D.N.Y. Mar. 26, 2012). xxiv Jennings v. McCraw, No. 10-00141 (order dated 1/19/12) (unpublished) (appeal pending). xxv th Nat’l Rifle Ass’n v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 2012 U.S. App. LEXIS 22197 (5 Cir. Oct. 25, 2012) xxvi Lane v. Holder, 703 F.3d 668 (4th Cir. 2012). xxvii Dearth v. Holder, 2012 U.S. Dist. LEXIS 138697 (D.D.C. Sept. 27, 2012). xxviii Enos v. Holder, 2012 U.S. Dist. LEXIS 25759 (E.D. Cal. Feb. 28, 2012). xxix GeorgiaCarry.Org, Inc. v. Georgia, 764 F. Supp. 2d 1306 (M.D. Ga. 2011), aff’d, 687 F.3d 1244 (11th Cir. 2012). xxx Doe v. Wilmington Hous. Auth., 2012 U.S. Dist. LEXIS 104976 (D. Del. July 27, 2012). xxxi Digiacinto v. Rector & Visitors of George Mason Univ., 704 S.E.2d 365 (Va. 2011) (noting that weapons were prohibited “only in those places where people congregate and are most vulnerable…Individuals may still carry or possess weapons on the open grounds of GMU, and in other places on campus not enumerated in the regulation.”); Tribble v. State Bd. of Educ., No. 11-0069 (Dist. Ct. Idaho December 7, 2011) (upholding a University of Idaho policy prohibiting firearms in University-owned housing). xxxii Nordyke v. King, 2012 U.S. App. LEXIS 11076 (9th Cir. June 1, 2012) (en banc). xxxiii Jackson v. City and County of San Francisco, 2012 U.S. Dist. LEXIS 116732 (Aug. 17, 2012). xxxiv Perry v. State Civ. Serv. Comm'n, 2011 Pa. Commw. Unpub. LEXIS 919 (Pa. Commw. Ct. Nov. 14, 2011). xxxv Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012) (but suggesting that Illinois adopt a discretionary concealed carry licensing scheme), but see Woollard v. Gallagher, 2013 U.S. App. LEXIS 5617 (4th Cir. Mar. 21, 2013) (reversing a district court decision striking down a requirement in Maryland law that applicants for concealed carry permits show “a good and substantial reason” for carrying a firearm in order to obtain a permit to carry a firearm in public.) xxxvi Bateman v. Perdue, 2012 U.S. Dist. LEXIS 47336 (E.D.N.C. Mar. 29, 2012). xxxvii Fletcher v. Haas, 2012 U.S. Dist. LEXIS 44623 (D. Mass. Mar. 30, 2012). xxxviii Gowder v. City of Chicago, 2012 U.S. Dist. LEXIS 84359 (N.D. Ill. June 19, 2012). xxxix Johnston v. North Carolina, 735 S.E.2d 859 (N.C. Ct. App. 2012). xl Simmons v. Gillespie, 2008 U.S. Dist. LEXIS 81424 (C.D. Ill. Aug. 1, 2008) (finding possible Second Amendment violation where police chief issued personnel memorandum forbidding employee from possessing firearms off-duty); Cleveland v. Fulton, 898 N.E.2d 983 (Ohio Ct. App. 2008) (finding due process violation in city’s refusal to return firearm to person acquitted of gun crimes); Jennings v. Mukasey, 2008 U.S. Dist. LEXIS 82465 (M.D. Fla. Sept. 22, 2008) (finding possible Second Amendment claim in alleged government threat to prosecute individual if he lawfully pursued work in the firearms industry). xli Mishaga v. Monken, 753 F. Supp. 2d 750 (C.D. Ill. 2010). xlii Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011). xliii United States v. Stegmeier, 701 F.3d 574 (8th Cir. 2012). xv

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xliv

See, e.g., United States v. Pruess, 703 F.3d 242 (4th Cir. 2012); United States v. Moore, 2012 U.S. App. LEXIS 1335 st (4th Cir. Jan. 25, 2012); United States v. Torres-Rosario, 658 F.3d 110 (1 Cir. 2011); United States v. Williams, 616 F.3d 685 (7th Cir. 2010); United States v. Anderson, 559 F.3d 348 (5th Cir. 2009); United States v. Rhodes, 2012 U.S. Dist.

LEXIS 76363 (S.D. W. Va. June 1, 2012); United States v. Edge, 2012 U.S. Dist. LEXIS 15002 (W.D.N.C. Feb. 8, 2012); United States v. Loveland, 2011 U.S. Dist. LEXIS 119954 (W.D.N.C. 2011); United States v. Kirkpatrick, 2011 U.S. Dist.

LEXIS 82801 (W.D.N.C. July 27, 2011). xlv United States v. Weaver, 2012 U.S. Dist. LEXIS 29613 (S.D. W. Va. Mar. 7, 2012). xlvi See, e.g., United States v. Davis, 2012 U.S. Dist. LEXIS 169262 (S.D. W. Va. Nov. 29, 2012); United States v. Henry, 688 F.3d 637 (9th Cir. 2012); United States v. Zaleski, 2012 U.S. App. LEXIS 14341 (2d Cir. July 13, 2012); United States v.

Colon-Quiles, 2012 U.S. Dist. LEXIS 62587 (D.P.R. May 4, 2012); United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010) (affirming conviction for possession of a firearm with an obliterated serial number); United States v. Fincher, 538 F.3d 868 (8th Cir. 2008), cert. denied, 129 S. Ct. 1369 (2009). xlvii See, e.g., United States v. Larson, 2012 U.S. Dist. LEXIS 19817 (W.D. Va. Feb. 16, 2012) (upholding federal law prohibiting individuals who are subject to domestic violence-related court orders from possessing firearms); United States v. Chapman, 2012 U.S. App. LEXIS 57 (4th Cir. Jan. 4, 2012); United States v. Luedtke, 589 F. Supp. 2d 1018 (E.D. Wis. 2008); United States v. Mudlock, 2012 U.S. App. LEXIS 12617 (4th Cir. June 19, 2012). xlviii United States v. Carpio-Leon, 701 F.3d 974 (4th Cir. 2012); United States v. Alkhaldi, 2012 U.S. Dist. LEXIS 158867 (E.D. Ark. Sept. 17, 2012); United States v. Huitron-Guizar, 2012 U.S. App. LEXIS 9256 (10th Cir. May 7, 2012); United States v. Portillo-Munoz, 643 F.3d 437 (5th Cir. 2011). xlix See, e.g., United States v. Masciandaro, 638 F.3d 458 (4th Cir. Va. 2011) (affirming defendant’s conviction for possession of a loaded weapon in a motor vehicle in a national park); United States v. Lewis, 50 V.I. 995 (D.V.I. 2008). l United States v. Laurent, 2011 U.S. Dist. LEXIS 139907 (E.D.N.Y. 2011); United States v. Call, 2012 U.S. Dist. LEXIS 79080 (D. Nev. June 7, 2012). li See, e.g., United State v. Emond, 2012 U.S. Dist. LEXIS 149295 (D. Me Oct. 17, 2012); United States v. Carter, 2012 U.S. App. LEXIS 1243 (4th Cir. Jan. 23, 2012); United States v. Prince, 2009 U.S. Dist. LEXIS 54116 (D. Kan. June 26, 2009); United States v. Bumm, 2009 U.S. Dist. LEXIS 34264 (S.D. W. Va. Apr. 17, 2009); Piscitello v. Bragg, 2009 U.S. Dist. LEXIS 21658 (W.D. Tex. Feb. 18, 2009). lii See, e.g., United States v. Armstrong, 706 F.3d 1 (1st Cir. 2013); United States v. Chester, 2012 U.S. Dist. LEXIS 16821 (S.D. W. Va. Feb. 10, 2012); United States v. Staten, 666 F.3d 154 (4th Cir. 2011); United States v. Skoien, 614 F.3d 638 (7th Cir. 2010); United States v. White, 593 F.3d 1199 (11th Cir. 2010); United States v. Booker, 644 F.3d 12 (1st Cir. 2011); United States v. Holbrook, 613 F. Supp. 2d 745 (W.D. Va. 2009). See also In re United States, 578 F.3d 1195 (10th Cir. 2009). liii United States v. Greeno, 2012 U.S. App. LEXIS 10147 (6th Cir. May 21, 2012). liv United States v. Kitsch, 2008 U.S. Dist. LEXIS 58904 (E.D. Pa. Aug. 1, 2008) (holding that the government needed to prove that the defendant charged under the federal felon-in-possession statute had knowledge that he was a felon after he had been previously told by law enforcement that his conviction would be set aside). lv th United States v. Arzberger, 592 F. Supp. 2d 590 (S.D.N.Y. 2008); United States v. Kennedy, 327 Fed. Appx. 706 (9 Cir. 2009). lvi United States v. Huet, 2010 U.S. Dist. LEXIS 123597 (W.D. Pa. Nov. 22, 2010). See also United States v. Skeens, 589 F. Supp. 2d 757 (W.D. Va. 2008) (refusing to enhance a defendant’s sentence for illegal firearm possession where a handgun found in his home was owned by the defendant’s wife for self-defense). lvii United States v. Huet, 2012 U.S. App. LEXIS 133 (4th Cir. Jan. 5, 2012). lviii See, e.g., Wilson v. Alaska, 207 P.3d 565 (Alaska Ct. App. 2009) (upholding statute prohibiting handgun possession by felons); People v. Flores, 86 Cal. Rptr. 3d 804 (Cal. App. 4th Dist. 2008) (upholding statues prohibiting possession following misdemeanor conviction, carrying of a concealed firearm, and carrying of a loaded firearm in a public place); People v. Akins, 2011 Ill. App. Unpub. LEXIS 1838 (Ill. App. Ct. Aug. 3, 2011) and People v. Palmer, 2011 Ill. App. Unpub.

LEXIS 2055 (Ill. App. Ct. Aug. 26, 2011) (both upholding a state prohibition on carrying or possessing a firearm when certain aggravating circumstances are present); People v. Thomas, 2011 Ill. App. Unpub. LEXIS 2000 (Ill. App. Ct. Aug. 22, 2011) and People v. Pinkard, 2011 Ill. App. Unpub. LEXIS 2098 (Ill App. Ct. Sept. 2, 2011) (both upholding a statute prohibiting individuals who have been convicted of two or more enumerated offenses to receive, sell, possess, or transfer any firearm).

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lviii

People v. Dawson, 403 Ill. App. 3d 499, 510, 934 N.E.2d 598, 343 Ill. Dec. 274 (2010).

Ohio v. Henderson, 2012 Ohio 1268, 2012 Ohio App. LEXIS 1117 (Ohio Ct. App. Mar. 26, 2012); Oregon & Portland v.

Christian, 2012 Ore. App. LEXIS 344 (Or. Ct. App. Mar. 21, 2012); Williams v. Maryland, 10 A.3d 1167, 1178 (Md. 2011); People v. Mimes, 953 N.E.2d 55 (Ill. App. Ct. 2011); People v. Montyce H., 2011 Ill. App. LEXIS 1184 (Ill. App. Ct. 2011); People v. Williams, 962 N.E.2d 1148 (Ill. App. Ct. 2011). lx th People v. Mitchell, 209 Cal. App. 4 1364 (Cal. Ct. App. 2012). lxi Ohio v. Rush, 2012 Ohio 5919 (Ohio Ct. App. 2012). lxii Wisconsin v. Pocian, 2012 Wisc. App. LEXIS 298 (Wis. Ct. App. Apr. 11, 2012); People v. Spencer, 2012 Ill. App. LEXIS 82 (Ill. App. Ct. Feb. 6, 2012); Pohlabel v. Nevada, 2012 Nev. LEXIS 2 (Nev. Jan. 26, 2012); People v. Polk, 2011 Ill. App. Unpub. LEXIS 2278 (Ill. App. Ct. Sept. 23, 2011). lxiii Ohio v. Beyer, 2012 Ohio 4578 (Ohio Ct. App. 2012); but see Michigan v. DeRoche, 2013 Mich. App. LEXIS 181 (Mich.

Ct. App. Jan. 29, 2013) (holding that a state law prohibiting possession of a firearm by an intoxicated person was unconstitutional as applied to the defendant, who was in his own home). lxiv Crespo v. Crespo, 989 A.2d 827 (N.J. 2010). lxv People v. Arizmendi, 2011 Cal. App. Unpub. LEXIS 7284 (Cal. App. Ct. Sept. 27, 2011); People v. James, 174 Cal. App. 4th 662 (Cal. App. 3rd Dist. 2009). lxvi People v. Perkins, 880 N.Y.S.2d 209 (N.Y. App. Div. 2009). lxvii Ohio v. Israel, 2012 Ohio 4876 (Ohio Ct. App. 2012). lxviii Nevada v. Schultz, No. 10-CM-138 (Clark Cty. Cir. Ct. Oct. 12, 2010). lxix Wisconsin v. Brown, 2012 Wisc. App. LEXIS 305 (Wis. Ct. App. Apr. 17, 2012); Wisconsin v. Little, 2012 Wisc. App. LEXIS 66 (Wisc. Ct. App. Jan. 26, 2012). lxx Ohio v. Tomas, No. 526776 (Ohio Ct. Com. Pl. Dec. 7, 2010) (finding that “the State has no compelling interest in prohibiting this particular defendant from possessing firearms in his place of business and home” and declaring the statute “unconstitutional when a Defendant with no felony convictions…possesses firearms in his home or business, for the limited purpose of self-defense.”) lxxi Michigan v. Yanna, 2012 Mich. App. LEXIS 1269 (Mich. Ct. App. June 26, 2012). Notably, prior to this decision, the former law at issue was replaced by a new law that allows the carrying of a taser or stun gun with a valid concealed weapon license. lxxii Herrington v. United States, 6 A.3d 1237 (D.C. 2010). lxxiii Magnus v. United States, 2011 D.C. App. LEXIS 3 (Jan. 6, 2011). lxxiv United States v. Spring, 2012 U.S. Dist. LEXIS 112081 (D. Me. Aug. 9, 2012). lxxv See, e.g., Enos v. Holder, 2012 U.S. Dist. LEXIS 25759 (E.D. Cal. Feb. 28, 2012); United States v. Edge, 2012 U.S. Dist.

LEXIS 15002 (W.D.N.C. Feb. 8, 2012); Cf,. People v. Spencer, 2012 Ill. App. LEXIS 82 (Ill. App. Ct. Feb. 6, 2012) (applying intermediate scrutiny to uphold a law because the law is presumptively valid). lxxvi United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010); United States v. Masciandaro, 638 F.3d 458 (4th Cir. Va. 2011); United States v. Williams, 616 F.3d 685 (7th Cir. 2010); United States v. Skoien, 614 F.3d 638 (7th Cir. 2010); United States v. Reese, 627 F.3d 792 (10th Cir. 2010); Heller v. District of Columbia, 698 F. Supp. 2d 179 (D.D.C. 2010), aff’d in part and vacated in part, 670 F.3d 1244 (D.C. Cir. 2011). lxxvii See Bateman v. Perdue, 2012 U.S. Dist. LEXIS 47336 (E.D.N.C. Mar. 29, 2012); United States v. Bay, 2009 U.S. Dist.

LEXIS 106874 (D. Utah Nov. 13, 2009); United States v. Engstrum, 2009 U.S. Dist. LEXIS 33072 (D. Utah Apr. 17, 2009), but see In re United States, 578 F.3d 1195 (10th Cir. 2009); United States v. Luedtke, 589 F. Supp. 2d 1018 (E.D. Wis. Nov. 18, 2008); United States v. Erwin, 2008 U.S. Dist. LEXIS 78148 (N.D.N.Y. Oct. 6, 2008). lxxviii Ezell, 651 F.3d 684 at 44 (explaining that the level of applicable scrutiny should be determined by “how close the law comes to the core of the Second Amendment right and the severity of the law's burden on the right”); Gowder v.

City of Chicago, 2012 U.S. Dist. LEXIS 84359 (N.D. Ill. June 19, 2012); Nat’l Rifle Ass’n v. Bureau of Alcohol, Tobacco, th Firearms, and Explosives, 2012 U.S. App. LEXIS 22197 (5 Cir. Oct. 25, 2012). lxxix United States v. Decastro, 2012 U.S. App. LEXIS 11213 (2d Cir. June 1, 2012). lxxx Kachalsky v. Cacace, 701 F.3d 81 (2d Cir. 2012). lxxxi Nordyke v. King, 644 F.3d 776 (9th Cir. 2011) (adopting the substantial burden test), vacated en banc, 2012 U.S. App. LEXIS 11076 (9th Cir. June 1, 2012). See Scocca v. Smith, 2012 U.S. Dist. LEXIS 87025 (N.D. Cal. June 22, 2012) lix

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(finding that while the Nordyke appellate panel decision is no longer binding precedent it remains persuasive authority). lxxxii People v. Williams, 962 N.E.2d 1148 (Ill. App. Ct. 2011). lxxxiii Ohio v. Rush, 2012 Ohio 5919 (Ohio Ct. App. 2012). lxxxiv United States v. Laurent, 2011 U.S. Dist. LEXIS 139907 (E.D.N.Y. 2011). lxxxv Wisconsin v. Brown, 2012 Wisc. App. LEXIS 305 (Wis. Ct. App. Apr. 17, 2012). lxxxvi Ohio v. Shover, 2012 Ohio 3788 (Ohio Ct. App. 2012). lxxxvii See Jennings v. McCraw, No. 10-00141 (order dated 1/19/12) (unpublished)(appeal pending); Palmer, 2011 Ill. App. Unpub. LEXIS 2055 at 18; Akins, 2011 Ill. App. Unpub. LEXIS 1838 at P10; New Jersey v. Robinson, 2011 N.J. Super.

Unpub. LEXIS 2274 (App. Div. Aug. 23, 2011); Richards v. County of Yolo, 2011 U.S. Dist. LEXIS 51906 (E.D. Cal. May 16, 2011); Williams v. Maryland, 10 A.3d 1167, 1178 (Md. 2011); People v. Dawson, 934 N.E.2d 598 (Ill. App. Ct. 2010), cert. denied by Dawson v. Illinois, 131 S. Ct. 2880 (U.S. 2011); People v. Yarbrough, 86 Cal. Rptr. 3d 674 (Cal. Ct. App. 2008), review denied by People v. Yarbrough (Ronnie), 2009 Cal. LEXIS 2948 (Cal., Mar. 18, 2009); People v. Williams, 962 N.E.2d 1148 (Ill. App. Ct. 2011); In re Matter of Kelly, 2012 N.Y. Misc. LEXIS 369 (N.Y. App. Div. June 13, 2012). lxxxviii Woollard v. Gallagher, 2013 U.S. App. LEXIS 5617 (4th Cir. Mar. 21, 2013). lxxxix Woollard v. Sheridan, 2012 U.S. Dist. LEXIS 28498 (D. Md. March 2, 2012); United States v. Weaver, 2012 U.S. Dist.

LEXIS 29613 (S.D. W. Va. Mar. 7, 2012); Bateman v. Perdue, 2012 U.S. Dist. LEXIS 47336 (E.D.N.C. Mar. 29, 2012); Kachalsky v. Cacace, 701 F.3d 81 (2d Cir. 2012)(explaining, “Although the Supreme Court's cases applying the Second Amendment have arisen only in connection with prohibitions on the possession of firearms in the home, the Court's analysis suggests…that the Amendment must have some application in the very different context of the public possession of firearms.”) ; Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012)(explaining, “Heller repeatedly invokes a broader Second Amendment right than the right to have a gun in one’s home…”) xc Young v. Hawaii, 2012 U.S. Dist. LEXIS 169260 (D. Haw. Nov. 29, 2012); United States v. Masciandaro, 638 F.3d 458 (4th Cir. Va. 2011); Peruta v. County of San Diego, 758 F. Supp. 2d 1106 (S.D. Cal. 2010). xci Hall v. Garcia. 2011 U.S. Dist. LEXIS 34081 (N.D. Cal. Mar. 17, 2011); Mimes, 953 N.E.2d 55 (Illinois appellate court found that a law prohibiting guns in public “imposes a burden on the inherent right of self-defense” but nonetheless upheld the law under intermediate scrutiny.) But see Nevada v. Schultz, No. 10-CM-138 (Clark Cty. Cir. Ct. Oct. 12, 2010) (Wisconsin trial court dismissing an indictment under the state’s law prohibiting the carrying of concealed weapons as violating the Second Amendment).

17