Protecting Strong Gun Laws: The Supreme Court Leaves Lower Court Victories Untouched


In the last eight years, the U.S. Supreme Court has rejected more than 70 cases seeking to expand the very limited right defined in the unprecedented Second Amendment case, District of Columbia v. Heller. By repeatedly declining to review lower court decisions upholding federal, state, and local gun laws, the Supreme Court has maintained important limitations on the Second Amendment and has reconfirmed that the Amendment is not an obstacle to smart gun laws that keep our communities safe from gun violence.

Since the Court’s decision in the Heller case 2008, lower courts across the country have been inundated with costly and time-consuming challenges to state and local gun laws.  However, lower courts have consistently upheld these laws, noting that many of these laws have been successful at protecting people from gun violence and keeping guns out of the hands of criminals while still allowing law-abiding citizens to keep guns in their homes for self defense.  Since 2008, there have been over 1,090 Second Amendment cases challenging gun laws nationwide, with an overwhelming majority—94%—of the lower court decisions upholding those laws.

Many of these Second Amendment challenges to gun laws make their way to the Supreme Court.  However, the Court has refused to hear these cases,1 leaving lower court decisions upholding the laws intact and keeping strong gun laws on the books.  For example, the Supreme Court has refused to hear cases that:

  1. In 2010, the Court decided McDonald v. City of Chicago, which held that the right recognized in Heller extends to state and local governments.  That case involved a Chicago law nearly identical to the one struck down in Heller and did not expand the substantive scope of the Second Amendment. ⤴︎

Supreme Court Leaves in Place New Jersey Law Limiting Guns in Public Places

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The U.S. Supreme Court today refused to hear a case that challenged an important gun safety law in New Jersey which requires applicants for a concealed weapon permit show a “justifiable need” before they may carry a firearm in public. By not hearing Drake v. Jerejian, the Supreme Court leaves in place a decision by the U.S. Court of Appeals for the Third Circuit finding New Jersey’s concealed weapons permitting system to be constitutional and an important part of protecting citizens from dangerous firearms in public spaces.

The question of whether the Second Amendment applies outside of the home is a major issue across the nation right now.  Several states, including New Jersey, New York, and California, give law enforcement the discretion to decide whether a person has a legitimate need to carry a concealed weapon in public places. Strong concealed weapons permitting systems serve to improve public safety by helping to keep guns out of public places.

Of the five U.S. Courts of Appeals that have heard Second Amendment challenges to these kinds of laws, four have found them to be constitutional.  Only recently did a three-judge panel of the Ninth Circuit unexpectedly break with the other courts in finding San Diego’s permitting system to violate the Second Amendment – a radical decision that has the potential to be overturned if the Ninth Circuit decides to rehear the case with a full panel of judges.

The Supreme Court’s decision today is part of a larger trend in which the Court has repeatedly refused to hear Second Amendment challenges to common sense gun laws.  Since the landmark Supreme Court decisions in Heller and McDonald, the Court has denied review in over 60 Second Amendment challenges to our nation’s gun laws.  As a result, the Court has refused to disturb the large number of federal and state court decisions upholding strong gun regulations.

In rejecting the gun lobby’s request to hear the Drake case today, the Supreme Court has left this issue in the hands of the lower courts, the vast majority of which have approved laws, like those in New Jersey, which serve to protect citizens from a flood of dangerous firearms in public places.

For more, read our information on other cases that have addressed the Second Amendment since the pivotal 2008 Heller case or read our summary of concealed weapon permitting laws nationwide.

Law Center and Attorney General Harris Defend California Law in Pivotal Ninth Circuit Concealed Weapon Case


A radical Ninth Circuit Court of Appeals decision earlier this month put one of California’s key laws in jeopardy. In that case, two conservative judges issued a decision that could potentially undermine a decades old law allowing law enforcement to have discretion over who is allowed to carry a hidden, loaded gun in public. Today, California Attorney General Kamala Harris filed a request that the Ninth Circuit reconsider the case in front of an en banc panel of judges.

The law at issue here allows law enforcement to issue a permit to carry a hidden, loaded gun in public if the applicant can demonstrate “good cause” for receiving a permit. This type of system is commonly called a “may issue” permitting system and is not uncommon in other states across the country. In Peruta v. County of San Diegotwo judges on a three judge panel of the Ninth Circuit decided that California’s good cause requirement must be interpreted to allow anyone who claims a general desire for personal self-defense in public to be issued a permit, contrary to three other circuits’ decisions on this issue.

Given that this decision guts a critical piece of California law regarding guns in public, it is no surprise that the Attorney General has decided to get involved in the case and request an en banc rehearing. Today, the Law Center—which also filed an amicus brief in front of the original three judge panel—filed an amicus brief that supports the Attorney General’s request. Our brief argues that the Peruta decision is a dramatic departure from other courts’ analysis of this issue. In fact, cases challenging similar “may issue” systems in New York, Maryland, and New Jersey have been rejected by three different federal appellate courts.

The briefs filed by the Law Center, Attorney General Harris, and other organizations send a clear message to the Ninth Circuit to stop this radical decision by two judges which could overturn decades of California law that helps law enforcement prevent gun violence. This unprecedented ruling starkly departs from other courts’ interpretations of the Second Amendment by failing to consider the public safety benefits of granting law enforcement discretion in deciding who should be allowed to carry a concealed weapon and by failing to recognize the well-established history of regulating guns in public.  Courts that have taken those considerations into account have all upheld these critical laws.

Read the full text of our amicus brief here.

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Extreme Ninth Circuit Concealed Weapon Decision Out Of Sync With Other Courts


California has some of the strongest gun laws in the nation and these strong laws have had a significant role in keeping Californians safe. Over the past twenty years, California’s gun laws have contributed to a significant—56%—drop in California’s gun death rate. However, a radical Ninth Circuit Court of Appeals decision has put one of the state’s key laws in jeopardy. Yesterday, two conservative judges issued a decision that could potentially undermine a decades old law allowing law enforcement to have discretion over who is allowed to carry a hidden, loaded gun in public.

This law, like laws in several other states across the country, only allows law enforcement to issue a permit to carry a concealed loaded gun in public if the applicant can demonstrate “good cause” for the issuance of a permit—commonly called a “may issue” permitting system.

In California, counties can define “good cause” differently, and many require applicants to show that they are at a special risk of being targeted by criminals that is greater than the general population in order to demonstrate “good cause.” In this case, Peruta v. County of San Diego, the plaintiffs claim that the Second Amendment requires counties to issue permits to anyone who applies who claims a general need for self-defense, regardless of whether they have a special risk.

Since the controversial 2008 Supreme Court decision District of Columbia v. Heller, the gun lobby has flooded the courts with similar claims, which have nearly all been rejected. In fact, cases challenging similar “may issue” systems in New York, Maryland, and New Jersey have been rejected by three different federal appellate courts. In yesterday’s decision, however, two judges on a three judge panel of the Ninth Circuit decided that California’s good cause requirement must be interpreted to allow anyone who claims a general desire for personal self-defense in public to be issued a permit, contrary to other circuits’ decisions on this issue.

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Extreme District Court Decision Allows Guns in Post Office Parking Lot


Earlier this week, in a radical and confusing decision, a district court in Colorado ruled that the Second Amendment prevents a post office from keeping guns out of its parking lot.  In Bonidy v. United States Postal Service, the plaintiff—joined by a radical right wing gun lobby group—challenged a postal service regulation prohibiting guns on post office property.  The court held that while the plaintiff could not carry his gun inside the post office because it was a “sensitive place” under the Supreme Court’s landmark decision in District of Columbia v. Heller, he had a “right” to carry a gun in the post office’s parking lot.

The court’s ruling in this case is particularly surprising since the Tenth Circuit earlier this year flatly held in Peterson v. Martinez that “the Second Amendment does not confer a right to carry concealed weapons.”  The court acknowledged that binding precedent, but also noted that the Tenth Circuit had not addressed a right to openly carry a firearm.  The court went on to find that “the Second Amendment protects the right to openly carry firearms outside the home for a lawful purpose, subject to such restrictions as may be reasonably related to public safety.”  What is odd about this conclusion—aside from the fact that nothing in Supreme Court or Tenth Circuit precedent compels it—is that this case simply did not involve the open carrying of firearms.  Instead, the plaintiff sought a right to carry a concealed weapon onto post-office property, an issue that should have been squarely settled by Peterson.  The court provides no explanation for this inconsistency.

The court then found—quite correctly—that the post office building itself was a sensitive place where restrictions on the right to bear arms were presumably justified.  Indeed, Heller itself specifically mentions “government buildings” as one of the “sensitive places” where guns can be properly prohibited.  Continue reading

Federal Appeals Court Holds that Colorado’s Concealed Carry Licensing Law is Constitutional

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Last month, the U.S. Court of Appeals for the Tenth Circuit confirmed that a law requiring that someone be a Colorado resident in order to qualify for a license to carry a concealed weapon in the state remains consistent with the Second Amendment.

As discussed in this important decision, the requirement to prove state residency defined by Colorado law is an essential component of firearms licensing. Many of the state and local records that would disqualify someone from possessing or carrying a firearm — such as those reflecting a criminal conviction or mental health adjudication — are not transmitted between states, making the proof of state residency pivotal to keeping weapons out of the hands of dangerous people.

Although the court could have only addressed Colorado’s residency requirement, the Tenth Circuit held more broadly that “the carrying of concealed weapons is not protected by the Second Amendment,” thus rejecting the plaintiff’s claim. This decision is particularly noteworthy because Second Amendment challenges to concealed carry licensing laws are currently pending in several other federal appellate courts around the country, setting an important precedent for other courts to uphold existing licensing laws.

Want more? Check out the other recent success stories.

Federal Appeals Court Upholds New York’s Concealed Handgun Licensing Law

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Around the country, courts are confronting a critical question: whether the Second Amendment requires states to issue concealed handgun licenses to virtually anyone who wants one.

This week, the U.S. Court of Appeals for the Second Circuit addressed that question, holding that New York’s requirement that concealed carry applicants show “a special need for self-protection” does not violate the Second Amendment.  In Kachalsky v. Cacace, the court explained that the requirement of a showing of need is substantially related to the government’s important interests in preventing crime and guaranteeing public safety.  The court found that the requirement is consistent with gun regulation that has existed since the nation’s founding, noting, “[t]here is a longstanding tradition of states regulating firearm possession and use in public because of the dangers posed to public safety.”  New York has required a showing of need for carrying a concealed weapon for 100 years.

While many states issue a concealed handgun license to virtually anyone who applies, states like California and New York require an applicant to show a legitimate need to carry a gun in public, usually by presenting documentation of a real threat to the applicant’s safety.  Those requirements are now under attack in a number of Second Amendment lawsuits nationwide brought by individuals who have no legitimate need to carry guns in public places.

Thankfully, the courts are standing up for the safety of their citizens and protecting the laws that work to reduce the violence that plagues their communities. For more this trend, read our publication, The Second Amendment Battleground: Victories in the Courts and Why They Matter.

To find out more about this case, read the decision in Kachalsky v. Cacace.

Want more? Check out the other recent success stories.

Amicus Briefs: Bringing Our Expertise to the Courts

Over the past four years, our nation’s courts have become a major battleground in the debate about gun violence in our communities. Right now, people who want to carry loaded firearms on public streets are forcing judges across the country to question the scope of the Second Amendment. But where should judges turn for guidance in evaluating these claims? The Supreme Court’s landmark Heller decision in 2008 effectively upended the legal understanding of the Second Amendment that had existed for almost eighty years. When it comes to gun litigation, courts are now having to evaluate how to keep our communities safe with little Second Amendment case law to guide them.

The Law Center is helping to fill that void through amicus curiae (“friend of the court”) briefs in significant Second Amendment cases across the country. Because we are the only organization in the country that tracks Second Amendment litigation, national, state, and local firearms laws, and pending firearms legislation nationwide, we have unique expertise that can help courts understand the critical importance of smart laws to prevent gun violence. Through amicus briefs, we can present that expertise to courts shaping the meaning of the Second Amendment.

Amicus briefs enable us to get involved in precedent-setting cases that have nationwide significance, since numerous challenges to similar gun laws are currently pending before courts across the country. We recently filed an amicus brief in the First Circuit Court of Appeals in Hightower v. Boston, in which we argued that a Massachusetts law requiring a license to carry a concealed weapon in public does not violate the Second Amendment. When the court issued its decision upholding the law on August 30th, it became the first federal appellate court in the nation to issue a decision on a Second Amendment challenge to a concealed carry law. Six other federal appellate courts are currently facing similar challenges.  Continue reading

Success Story: Governors Say “No” to Extreme Gun Lobby Bills in Three States

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On April 14, 2012, Arizona Governor Janice Brewer vetoed a bill, for the second year in a row, that would have weakened restrictions on carrying a loaded firearm in public buildings and on public property.  Minnesota Governor Mark Dayton vetoed a bill on March 5, 2012 that would have created reciprocity with concealed weapons permits from all other states and expanded current stand your ground provisions outside of the home. In South Dakota on March 19, 2012, South Dakota Governor Dennis Daugaard vetoed a bill that would have allowed the carrying of concealed weapons without a permit.

Want to see more success stories? You can find them here.

Success Story: Federal Court Upholds Texas’ Age Restriction for Carrying Concealed Weapons

Under Texas law, an individual must be 21-years-old in order to obtain a permit to legally carry a concealed handgun outside of the home.  Several individuals between the ages of 18 and 21 who wanted to carry concealed weapons in Texas filed a lawsuit in federal court arguing that the age restriction violated the Second Amendment in Jennings v. McCraw.

A judge in Texas upheld the challenged law.  He found that the Second Amendment is limited to allowing an individual to keep a firearm at home for the purpose of self-defense, and therefore, that the Second Amendment does not guarantee a right to carry a firearm outside of the home, regardless of one’s age.  Thus, the judge did not need to consider the appropriateness of the age restriction.  The ruling is particularly significant for its strong, definitive language finding that the Second Amendment does not extend outside of the home.