RECENT DEVELOPMENTS IN SECOND AMENDMENT LITIGATION Updated August 2, 2013 A.
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 controversial landmark decision in District of Columbia v. Heller, 554 U.S. 570 (2008). In that 5-4 decision, the court held for the first time that the Second Amendment protects an individual right of law-abiding, responsible citizens to keep a gun in the home for self-defense. This update summarizes the most significant recent Second Amendment lawsuits and decisions. Our more comprehensive analysis and overview of all the Second Amendment decisions since Heller can be found in the Post-Heller Litigation Summary available at http://smartgunlaws.org/post-heller-litigation-summary/. B.
New Decisions
L.S. v. State (Fla. Dist. Ct. App. 4th Dist.): Florida Appellate Court Upholds Prohibition On Minor Firearm Possession1 The court rejected the defendant’s challenge to his conviction for possession of a firearm by a minor. The court found that the Second Amendment does not protect the right of minors to own firearms in the same way it protects adults, in part because minors lack the judgment necessary to safely possess deadly weapons. The court analogized this restriction to other limitations on the constitutional rights of minors that have been approved of by the Supreme Court, such as limits on children’s access to sexually explicit materials and the lack of juries in juvenile court proceedings. Drake v. Filko (3rd Circuit): Third Circuit Upholds New Jersey’s Discretionary Concealed Carry Law2 The court rejected a Second Amendment challenge to New Jersey’s concealed carry permitting law. That law limits the issuance of permits only to applicants who can demonstrate a “justifiable need” to carry a handgun and can demonstrate that they are otherwise not disqualified under the law from possessing a handgun. The court began by declining to decide whether the Second Amendment had any application at all outside the home, but stated that it was proceeding on the assumption that it did have some application there. However, the court concluded that the justifiable need standard was a “presumptively lawful” regulation under Heller because it was longstanding. The court based this conclusion on the fact that New Jersey law had some sort of justifiable need requirement for concealed carry applications since the 1 2
L.S. v. State, 2013 Fla. App. LEXIS 11592 (Fla. Dist. Ct. App. 4th Dist. July 24, 2013). Drake v. Filko, No. 12-1150 (3rd Cir. July 31, 2013).
early 20th century. This is the same time period that the first bans on felons possessing firearms were enacted, which the Supreme Court had found longstanding in Heller. Thus, the court held that the justifiable need requirement was outside the scope of the Second Amendment. The court held, in the alternative, that even if the law did burden Second Amendment conduct, it would satisfy intermediate scrutiny. The court found that given the inherently dangerous nature of handguns in public, the fit between the justifiable need requirement and the interest in public safety was “reasonable.� The court also rejected the plaintiffs’ argument that First Amendment prior restraint analysis should apply.