Miller v. Becerra: Protecting States’ Ability to Regulate Military-Style Weaponry

Case Information: Miller v. Becerra, No. 3:19-cv-01537 (S.D. Cal. amicus brief filed January 24, 2020).

At Issue: In 2019, plaintiffs filed a Second Amendment challenge to California’s Assault Weapon Control Act (“the Act”). Plaintiffs claim that the Act violates the Second Amendment because they have a constitutional right to possess military-style semiautomatic assault rifles like those used to carry out the Newtown, Orlando, Las Vegas, and Parkland mass shootings (among many others); assault handguns like the one used to carry out the Dayton and 101 California shootings; and combat-grade assault shotguns.

Giffords Law Center’s Brief: Our brief argues that the California legislature acted constitutionally by prohibiting a subset of semiautomatic rifles, assault pistols, and assault shotguns whose add-on military features make these weapons uniquely dangerous and facilitate criminal use and mass killings. We further argue that the Second Amendment, as interpreted by the Supreme Court and other courts, does not protect a right to own weapons that were designed for a battlefield, not responsible self-defense in the home. Indeed, every court to have considered challenges to laws banning assault weapons since the Supreme Court’s decisions in Heller and McDonald has upheld those laws. Our brief then argues that the expert declaration that the Plaintiffs base many of their arguments on should be given no weight considering that its author has been widely discredited for flawed methodology in his research, failing to provide data and evidence to support his claims, failure to publish in peer-reviewed journals, and ethical violations committed in an attempt to defend his work from criticism.

Read the full text of our amicus brief here.

NRA v. Swearingen: Defending Florida’s Gun Safety Progress From the NRA

Case Information: Nat’l Rifle Ass’n v. Swearingen, No. 18-CV-00137 (N.D. Fla. amicus brief filed Jan. 23, 2020).

At Issue: In response to the mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida, the Florida Legislature passed a bipartisan Act to address the crisis of gun violence in the state: the Marjory Stoneman Douglas High School Public Safety Act. Among other things, this act generally prohibits anyone under the age of 21 from purchasing a firearm. Hours after Governor Rick Scott signed the act into law, the NRA filed a lawsuit claiming that the age restriction violates the Second Amendment. Giffords Law Center recently filed an amicus brief in defense of the law, joined by Brady, Team ENOUGH, March for our Lives Action Fund and Orange Ribbons for Gun Safety—a nonprofit gun safety organization founded by Fred Guttenberg, the father of Jaime Guttenberg, who was killed at Parkland.

Giffords Law Center’s Brief: Our brief argues that Florida’s lifesaving minimum age law does not affect conduct protected by the Second Amendment, as it lets responsible minors possess firearms if, for example, a parent purchases it for them. We then argue that even if the court finds that the law does affect some protected conduct, at most, the court should apply intermediate scrutiny to evaluate the law’s constitutionality. In the Second Amendment context, a court must uphold laws under intermediate scrutiny if it is “substantially related to an important governmental objective.” To illustrate how this law is closely related to the critical governmental objective of protecting public safety, our brief summarizes neuroscience and social science research showing the grave public safety risks posed by allowing 18-to-20-year-olds easy access to guns, including the risk to young people who are disproportionately likely to be the victims of gun violence. Notably, we highlight compelling research that has found a connection between age restrictions for firearm purchases and declines in firearm-related adolescent deaths.

Read the full text of our amicus brief here.

Jones v. Becerra: Supporting California’s Strong Minimum Age Law

Case Information: Jones v. Becerra, No. 3:19-cv-01226-L-AHG (S.D. Cal. brief filed January 3, 2020).

At Issue: Since 2011, California has prohibited minors under the age of 21 from purchasing handguns, a requirement similar to a federal law that has been in place for over 50 years. In 2018, California extended this age restriction to long guns, subject to certain exceptions for young people with valid hunting licenses, members of the Armed Forces and law enforcement, and transfers to minors from immediate family members. Plaintiffs argue that California’s age restrictions violate the Second Amendment and that limiting the ability of minors under the age of 21 to purchase firearms will have no effect on gun violence in the state. 

Giffords Law Center’s Brief: Our brief argues that California’s law is consistent with the Second Amendment based on extensive historical support for a minimum age of 21 for firearm access, and because the challenged measure easily satisfies intermediate scrutiny based on evidence that unsupervised minors with firearms pose a grave public safety risk. Our brief summarizes social science research about impulsivity and suicidality in minors ages 18 to 20, as well as FBI crime data showing that firearm homicides and violent crimes disproportionately involve individuals under 21. We also highlight research that has found a connection between age restrictions on firearm purchases and declines in firearm-related adolescent deaths and violence. Finally, our brief argues that the plaintiffs’ counterarguments should be given no weight since they are based on evidence from an author who has been widely discredited for flawed methodology and ethical violations in his research.

Read the full text of our amicus brief here.

Florida v. City of Weston: Helping Local Lawmakers Challenge Unconstitutional Penalties

Case Information: Florida Governor et al. v. City of Weston et al., No. 1D19-2819 (Fla. Ct. App. brief filed January 2, 2020).

At Issue: Florida’s preemption law limits local regulation in the field of firearms and purports to impose harsh penalties, including fines and removal from office, on local officials found to violate the law. Officials from Weston, Coral Springs, Broward County, and other localities filed lawsuits against the Governor challenging the penalty provisions of this law.  On July 26, 2019, a trial court in Florida struck down the penalty provisions of Florida’s preemption law, siding with the position Giffords Law Center argued for in the amicus brief we submitted in the case. The Governor appealed the court’s decision, and the case is now before the First District Court of Appeal in Florida.

Giffords Law Center’s Brief: Our brief, filed jointly with the League of Women Voters of Florida, Brady, and Equality Florida Institute, urges the court to affirm the trial court’s order invalidating the penalty provisions of Florida’s preemption law. Our brief explains that under this dangerous law, local legislators can be personally punished if they vote for a local ordinance later found to impinge upon the field of firearms regulation, and this law is part of a troubling national trend toward punitive preemption of regulation that might touch on the subject of firearms. We argue that this type of preemption law will chill legitimate exercises of local legislative authority in areas that are not preempted, and that there is no evidence that the harsh penalty provisions are necessary to enforce the preemption law or protect Second Amendment rights.

Read the full text of our amicus brief here.

State v. Misch: Fighting for Vermont’s Lifesaving Gun Safety Laws

Case Information: State of Vermont v. Misch, No. 2019-266 (Vt. Supreme Court brief filed October 14, 2019).

At Issue: White supremacist Max Misch was the first person to be charged with violating Vermont’s ban on large capacity magazines (LCMs). He moved to dismiss the charges on the grounds that the LCM ban violates article 16 of the Vermont Constitution — Vermont’s version of the Second Amendment. Though the trial court rejected his constitutional claim, the prosecutors and defendant jointly agreed to appeal to the Vermont Supreme Court for a final ruling on the constitutionality of the law, and the proper interpretation of article 16, before going further with the criminal case. 

Giffords Law Center’s Brief: We filed an amicus brief in support of Vermont’s law with the Vermont Medical Society and GunSense Vermont. Our brief argues that Vermont’s law is constitutional under any standard of review, citing the many federal court decisions that have upheld LCM restrictions under the Second Amendment. We then address the grave danger posed by LCMs, both in mass shootings and crime, and explain how Vermont’s law is tailored to address this danger without compromising self defense. We further argue that the Court should construe Article 16 in a manner that respects the Legislature’s traditional authority to regulate public safety, consistent with Vermont text, history, and precedent.

Read the full text of our amicus brief here.

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

supreme court

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.

Hirschfeld v. ATF: Defending the Federal Minimum Age Law

Update — On October 4, 2019, the district court issued a favorable decision rejecting the plaintiffs’ challenge to the federal minimum age law, siding with the position Giffords Law Center argued for at oral argument and in our amicus brief.

Case Information: Hirschfeld et al. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives et al. (W.D. Va. amicus brief filed June 14, 2019)

At Issue: The plaintiffs in this case challenge the longstanding federal law restricting the purchase of handguns by minors under the age of 21 from federally licensed firearm dealers. The plaintiffs argue that the law violates the Second Amendment rights of 18-to-20-year-olds. Age restrictions, however, have existed throughout history, and the purchase of guns by unsupervised minors is a conduct that falls outside of the scope of the Second Amendment. Additionally, even if the law were to implicate the Second Amendment, it remains constitutional under the highest appropriate level of review, intermediate scrutiny.

Giffords Law Center’s Brief: Our brief argues that based on the two-part framework established by the Fourth Circuit for Second Amendment cases, the law in question is constitutional. We first look at precedents in which restrictions on the purchase of firearms were upheld by the Fourth Circuit. Next, we consider how empirical evidence provided through social science analyses documented in our previous amicus brief supports restricting the purchase of firearms by minors under 21. That research shows that minors under 21 are disproportionately involved in violent crime and are at a higher risk of attempting suicide. Moreover, we defend the use of the two-part framework, which lets judges effectively analyze the constitutionality of laws that prevent gun violence and save lives. Finally, we argue that the plaintiff’s claim should be dismissed because the law in question is constitutional under the two-part framework.

Read the full text of our amicus brief here.

Ohio v. Weber: Confronting the Dangers of Alcohol Use and Firearm Access

Case Information: Ohio v. Weber, No. 2019-0544 (Ohio Supreme Court brief filed September 19, 2019).

At Issue: Ohio Revised Code 2923.15 prohibits the carrying or use of firearms while under the influence of alcohol or drugs. The defendant in this case was charged with and convicted of using weapons while intoxicated, and then appealed his conviction in an Ohio appellate court, arguing that the prohibition on using firearms while intoxicated violates the Second Amendment. The appellate court upheld the constitutionality of the law. The challenger appealed again, and his case is now before the Ohio Supreme Court.

Giffords Law Center’s Brief: Our brief, filed jointly with Brady, argues that the challenged law is constitutional because it is properly tailored to protect Ohio residents from the dangers posed by combining alcohol and firearms — including the significantly elevated risks of unintentional firearm injury, domestic violence assaults, and self-harm. We explain why the court should evaluate the constitutionality of the Ohio law using the two-step framework, which is the consensus approach courts take in Second Amendment challenges. Finally, we argue that the law is constitutional under this framework when reviewed under either intermediate or strict scrutiny.

Read the full text of our amicus brief here.

RMGO v. Polis: Protecting the Magazine Restrictions that Save Lives During Mass Shootings

Case Information: Rocky Mountain Gun Owners v. Polis, No. 2018SC0817 (Colo. S. Ct. brief filed Aug. 12, 2019)

At Issue: The plaintiff in this case brings a state constitutional challenge to Colorado’s law prohibiting the possession, sale, or transfer of ammunition magazines holding more than 15 rounds— like those used in mass shootings from Sandy Hook to Las Vegas to Parkland and countless other tragedies. Going beyond than the law at issue, the challengers also urge Colorado’s highest court to abandon the judicial test Colorado courts have applied for two decades to gun regulations challenged under the Colorado constitution. That test, known as the “reasonable exercise” test, empowers legislatures to regulate guns to protect the public health, safety, and welfare; plaintiffs’ counter-proposal would force judges to severely limit the state’s traditional authority to protect residents from gun violence.

Giffords Law Center’s Brief: Our brief argues that the Colorado Supreme Court should uphold the challenged large-capacity magazine regulation under the reasonable exercise test, which historically more than 40 states have used in state constitutional challenges to gun safety laws. We argue that this test is appropriate because gun safety is a matter of state interest and concern, and the reasonable exercise test acknowledges Colorado’s essential role of protecting its citizens with firearm regulations tailored to the state’s unique experiences. Giffords Law Center’s brief argues that under the applicable test, Colorado’s magazine restrictions survive constitutional review because the law is carefully designed to reduce the number of mass shooting victims: large-capacity magazines (LCMs) are used in nearly 50% of mass shootings; all mass shootings in Colorado over the last 50 years involved LCMs; and, when LCMs are used in mass shootings, 40% more victims die, more than twice as many victims are shot, and the number of gunshot wounds per victim increases substantially.

Read the full text of our amicus brief here.