RECENT DEVELOPMENTS IN SECOND AMENDMENT LITIGATION Updated July 19, 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 lawsuits that have been filed and decisions that have been issued related to the Second Amendment. 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/postheller-litigation-summary/. B.
New Decisions
Kwong v. Bloomberg (2nd Circuit): Second Circuit Upholds New York City’s Handgun Permit Fee1 The court rejected plaintiff’s challenge to New York City’s fee of $340 for a three-year handgun permit. The court found that the fee was designed to recoup administrative costs and did not impose a substantial burden on Second Amendment rights. Accordingly, the court suggested that only rational basis review should apply. However, the court found that even if intermediate scrutiny applied, the fee would satisfy that standard. Bonidy v. United States Postal Service (D. Colo.): Colorado District Court Strikes Down Post Office Ban on Guns in Parking Lots.2 The court partially granted summary judgment in plaintiff’s favor in his challenge to the Post Office’s policy of prohibiting guns on Post Office property. The plaintiff, a concealed carry permit holder, sought to carry his gun into the Post Office in his small town to pick up his mail. The court held that while he could not carry his gun inside the building because it was a “sensitive place” under Heller, there was not a sufficient justification for prohibiting him from carrying a gun in the parking lot. The court appeared to apply intermediate scrutiny to reach the latter conclusion. This decision is puzzling because the court recognized that the Tenth Circuit has already held that concealed carry is not protected by the Second Amendment, but the court still reached the 1 2
Kwong v. Bloomberg, 2013 U.S. App. LEXIS 13798 (2nd Cir. July 9, 2013). Bonidy v. United States Postal Serv., 2013 U.S. Dist. LEXIS 95435 (D. Colo. July 9, 2013).
conclusion that open carry is protected, even though this case did not involve open carry. The court did not clearly explain how its conclusion that open carry is protected by the Second Amendment lead to its conclusion that the plaintiff may take a concealed handgun into the Post Office parking lot. Chardin v. Police Commissioner of Boston (Mass. Sup. Ct.): Massachusetts Supreme Court upholds lifetime ban on firearm carry permits for persons adjudicated juvenile delinquents for the commission of a felony3 The court rejected a challenge to Massachusetts’ law permanently banning persons adjudged to be juvenile delinquents based on the commission of a felony from obtaining a permit to carry a firearm. The court found that such laws were analogous to laws generally prohibiting the possession of a firearm by a convicted felon and therefore presumptively lawful under Heller and outside the scope of the Second Amendment. Embody v. Cooper (Tenn. App.): Tennessee Court of Appeals upholds CCW permit requirement that allows revocation when the permit holder poses a material likelihood of risk of harm.4 The court rejected a challenge to Tennessee’s concealed carry law which, among other things, allows the state’s Department of Safety to revoke a permit upon “a finding that an individual poses a material likelihood of risk of harm to the public.” The court found that carrying weapons outside the home is not within the “core” of the Second Amendment right recognized in Heller and McDonald and therefore intermediate scrutiny was appropriate. The court found that the law satisfied intermediate scrutiny because it “reasonably comport[ed] with the state's goal of preventing crime.” City of San Diego v. Boggess (Cal. App.): California Court of Appeals upholds law allowing forfeiture of firearms by persons involuntarily committed to mental institutions5 The court rejected the defendant’s claim that the confiscation of her guns when she was involuntarily committed to a mental hospital violated the Second Amendment. The court found that the law allowing this type of action fell within Heller's ‘presumptively lawful’ list and therefore was outside the scope of the Second Amendment.
3
Chardin v. Police Comm'r of Boston, 2013 Mass. LEXIS 352 (Mass. June 4, 2013). Embody v. Cooper, 2013 Tenn. App. LEXIS 343 (May 22, 2013). 5 City of San Diego v. Boggess, 2013 Cal. App. LEXIS 458 (Cal. App. 4th Dist. May 15, 2013). 4