Guedes v. ATF: Fighting for the Federal Bump Stock Ban

Case Information: Guedes et al. v Bureau of Alcohol, Tobacco and Firearms et al., Case No. 19-5042 (D.C. Cir. brief filed March 13, 2019).

At Issue: This case presents constitutional and other legal challenges to the federal bump stock rule finalized in December 2018 by the US Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF). The rule states that bump stocks — devices designed to convert semiautomatic rifles to fire fully automatically — are “machineguns” as defined by federal law, and are thus illegal. The plaintiffs-appellants filed suit against ATF, arguing that this rule contradicts the previous federal definition of machinegun and is arbitrary and capricious, among other legal claims.

Giffords Law Center’s Brief: Our brief argues that the plain meaning of “machinegun” includes devices that convert a firearm to a machinegun and thus encompasses bump stocks because bump stocks allow for automatic fire by a single function of the trigger. Our brief further argues that the ATF rule is not arbitrary or capricious, both because political concern over rulemaking does not render a rule arbitrary and capricious, and because the rule is rationally connected to the grave safety risks posed by bump stocks and consistent with the National Firearm Act’s purpose in banning machineguns.

Read the full text of our amicus brief here.

City of Weston et al. v. Florida Governor et al.: Opposing Extreme Preemption in Florida

Case information: City of Weston et al. v. Hon. Richard “Rick” Scott et al., Case No. 2018 CA 000699 (Leon County Circuit Court, filed March 4, 2019).

At Issue: This case involves a Florida preemption law that 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 the City of Weston, the City of Coral Springs, and Broward County filed separate lawsuits (now consolidated before the same judge) against the Governor and the State of Florida to overturn the preemption law. The cities and county argue that the court should strike down Florida’s preemption law because it impermissibly expands the Governor’s authority to remove elected officials from office, contravenes municipal governments’ authority to enact laws without fear of legal penalties, and is an unconstitutional restriction of local democracy.

Giffords Law Center’s Brief: Our brief in support of the plaintiff cities and county explains that under Florida’s dangerous law, local legislators can be personally punished if they vote for a local ordinance that impinges upon the field of firearms regulation. We argue that this unprecedented approach to enforcing a preemption law, since followed by other states, is unconstitutional because it deprives legislators of constitutionally-guaranteed immunity from civil liability for their legislative activities. Further, we argue that fining and removing legislators from office for voting will discourage people from seeking elected office in Florida, chill democratic participation, and deter enactment of non-preempted laws.

Read the full text of our brief here.

Malpasso v. Pallozzi: Defending Strong Standards for Concealed Carry Permits in Maryland

Case Information: Malpasso et al. v. Pallozzi, No. 18-2377 (4th Cir. brief filed February 1, 2019).

At Issue: This case involves a Second Amendment challenge to Maryland’s concealed carry regulations and standards. The challenged policies require applicants to demonstrate a “good and substantial reason” to carry concealed guns in public in order to receive a concealed carry permit. Plaintiffs filed a lawsuit claiming that this good and substantial reason standard violates the Second Amendment—taking the extreme position that permits should be issued to applicants who do not meet the standard.

Giffords Law Center’s Brief: Our brief argues that Maryland’s concealed carry regulations survive intermediate scrutiny because the good and substantial reason requirement serves a substantial governmental interest. The latest reputable research on the connection between carrying guns in public and crime overwhelmingly shows that relaxing concealed carry laws leads to increased violent crime and homicide. Research has also found that guns are rarely used in self-defense, and carrying a gun may actually increase one’s chance of being shot in an assault. Our brief also argues that the opposing research being used by the appellants is out of date and largely discredited.

Read the full text of our amicus brief here.

Young v. Hawaii: Urging the Ninth Circuit to Protect Strong Open Carry Regulations

Update — On February 8, 2018, the Ninth Circuit granted en banc review and vacated the panel’s unfavorable decision, as recommended in our amicus brief.

Case Information: Young v. State of Hawaii, et al. (9th Cir. brief filed September 24, 2018).

At Issue: In July 2018, a divided three-judge Ninth Circuit panel struck down a Hawaii law providing that law enforcement can issue open-carry permits to people “engaged in the protection of life and property.” In concluding that the open carry regulation violated the Second Amendment, the panel majority incorrectly interpreted Hawaii’s law as “[r]estricting open carry to those whose job entails protecting life or property.” The panel majority further concluded—for the first time by any federal appellate court—that the right to carry a loaded, openly visible firearm in public is a “core” Second Amendment right, placing it on equal footing with the right to keep a handgun for self-defense in one’s home. This dangerous ruling is contrary to conclusions reached about similar laws in three other federal circuit courts, as well as the Ninth Circuit sitting en banc.

Giffords Law Center’s Brief: Our brief argues that because of serious factual and legal errors made by the panel majority, the Ninth Circuit should grant en banc reviewvacate the panel decision, and remand the case for application of binding circuit precedents. We argue that remand is appropriate because the panel’s failure to credit evidence about historical regulation of public carry is contrary to the approach used by the Supreme Court as the Ninth Circuit in prior opinions. En banc rehearing is warranted because the panel decision creates an irreconcilable conflict with the Second, Third, and Fourth Circuits on the exceptionally important issue of whether open carry is a “core” Second Amendment right.

Read the full text of our amicus brief here.

Gun Owners of Vt. v. Birmingham: Fighting for Vermont’s Lifesaving New Gun Safety Laws

Case Information: Gun Owners of Vermont, Inc. v. Birmingham, et al. (Vt. Super. Ct. amicus brief filed Dec. 17, 2018).

At Issue: In 2018 Vermont passed a package of broadly supported and much-needed gun safety measures, including a law requiring background checks on private gun sales, a law prohibiting the sale of firearms to minors under the age of 21 unless the buyer has completed an approved hunter safety course (or falls under other exceptions), and a prohibition on the possession of bump-fire stocks. Plaintiffs in this lawsuit argue that each of these new measures violates Article 16 of the Vermont Constitution.

Giffords Law Center’s Brief: We partnered with GunSense Vermont on an amicus brief urging Vermont’s Superior Court to reject the meritless challenge to Vermont’s new background check and minimum age laws, as well as its ban on bump-fire stocks like those used in the massacre of 58 people in Las Vegas in 2017. Our amicus brief argues that Plaintiffs’ claims fail as a matter of law because any reasonable interpretation of Article 16 permits background checks that ensure felons and other dangerous persons do not purchase firearms, as well as reasonable restrictions on gun access by minors under 21. In addition, Vermont’s prohibition of lethal bump-fire stocks complies with Article 16 because bump-fire stocks are not “arms” protected by the state constitution.

Read the full text of our amicus brief here.


Jersey Rifle & Pistol Clubs v. Grewal: Defending N.J.’s Large-Capacity Magazine Restrictions

Update — On December 5, 2018, the US Court of Appeals for the Third Circuit issued a favorable decision rejecting the plaintiffs’ challenge to New Jersey’s LCM regulation, siding with the position Giffords Law Center argued for in our amicus brief.

Case Information: Association of New Jersey Rifle & Pistol Clubs, Inc., et al. v. Grewal, et al., No. No. 18-3170 (3d Cir. amicus brief filed Oct. 31, 2018).

At Issue: In 2018, following a series of devastating mass shootings across the nation, New Jersey enacted AB 2761, which generally prohibits the possession of large-capacity magazines (LCMs) holding more than ten rounds of ammunition. AB 2761 strengthens existing law in New Jersey, which allowed possession of magazines holding up to 15 rounds. However, the same day it was signed into law, gun lobby groups brought a legal challenge to it, arguing that the new 10-round magazine capacity limit violates the Second Amendment. If the challengers’ extreme arguments were accepted, it would support the idea that any restrictions on the possession of military-style firearms and accessories are unconstitutional.

Giffords Law Center’s Brief: We filed an amicus brief in support of New Jersey’s law that explains the critical need to halt proliferation and use of military-grade LCMs by mass shooters and other criminals. Giffords Law Center’s amicus brief argues that the Second Amendment allows prohibiting magazines that are unnecessary for self-defense and the favored tool of mass killers. We argue that New Jersey’s law survives the applicable standard of constitutional review because it is likely to reduce bloodshed during gun massacres by forcing shooters to reload more often and will also deter criminals from obtaining LCMs.

Read the full text of our amicus brief here.

Flanagan v. Becerra: Defending California’s Lifesaving Public-Carry Regulations

(Photo: AP/Houston Chronicle, Johnny Hanson)

Case InformationFlanagan v. Becerra, No. 18-55717 (9th Cir. amicus brief filed Nov. 27, 2018).

At Issue: In 2016, an 11-judge panel of the Ninth Circuit appeals court ruled in Peruta v. County of San Diego that the Second Amendment does not protect a right to carry concealed guns in public, since historical evidence shows that governments have long exercised broad authority to regulate or prohibit concealed-carry. Following this decision, which the US Supreme Court declined to review, the National Rifle Association and individual plaintiffs filed a new challenge to the laws restricting California residents from carrying visible, loaded firearms in public. In Flanagan v. Becerra, the NRA now argues that if California allows local law enforcement to restrict concealed-carry, it must allow unrestricted “open-carry” of guns, even in populated areas. The district court rejected this dangerous position and upheld California’s open-carry regulations, and the plaintiffs appealed to the Ninth Circuit.

Giffords Law Center’s Brief: Our brief in Flanagan argues that California’s public-carry laws are constitutional under the applicable standard of review because substantial evidence shows that the state’s laws reasonably further critical public safety goals. Social science evidence and empirical studies confirm that lax public-carry laws increase the risk of gun violence. In addition, without reasonable open-carry restrictions like California’s, even well-intentioned gun carriers can throw the public and law enforcement officers into a state of potentially deadly confusion.

Read the full text of our amicus brief here.

Maryland Shall Issue v. Hogan: Supporting Laws Banning Bump Stocks and Trigger Activators

Update — On November 16, 2018, the district court issued a favorable decision rejecting plaintiffs’ constitutional challenges to Maryland’s trigger activator ban, and upholding the law in full. The court’s opinion cited evidence and arguments from Giffords Law Center’s amicus brief.

Case Information: Maryland Shall Issue Inc. v. Hogan (D. Md. amicus brief filed July 27, 2018).

At Issue: On October 1, 2017, a gunman armed with AR-15 assault rifles modified with “bump stocks” unleashed a torrent of gunfire on a crowd of concert-goers in Las Vegas, Nevada, killing 58 people, hitting 422 with gunshots, and injuring a total of 851 people. This horrifying event, the deadliest mass shooting in modern American history, was enabled by the shooter’s use of bump stocks to evade federal restrictions on automatic weapons. After the federal government failed to act quickly to close the loophole, Maryland enacted a law prohibiting the possession and sale of bump stocks and other rapid fire trigger activators within the state. After the governor signed the lifesaving legislation, plaintiffs filed this lawsuit arguing that Maryland’s bump stock ban constitutes a government “taking” of their property in violation of the Takings Clause of the Constitution.

Giffords Law Center’s Brief: Our amicus brief argues that plaintiffs’ unsupported argument is foreclosed by Supreme Court precedent demonstrating that governments may use their police powers to restrict the possession and use of dangerous products without violating the Takings Clause. By regulating trigger activators, Maryland has not engaged in an unlawful “taking,” but has simply closed a loophole which allowed for a contravention of legitimate restrictions on automatic firearms, which are historically longstanding and have been repeatedly upheld as constitutional. Therefore, Maryland’s exercise of its police power in restricting the possession and use of trigger activators does not implicate the Takings Clause at all.

Read the full text of our amicus brief here.

Gould v. O’Leary: Advocating Strong Standards for Concealed Carry Permits in Massachusetts

Update — On November 2, 2018, the US Court of Appeals for the First Circuit issued a favorable decision upholding Massachusetts’ concealed carry law, siding with the position Giffords Law Center argued for in our amicus brief.

Case InformationGould v. O’Leary, No. 17-2202 (1st Cir. brief filed June 13, 2018).

At Issue: This case involves a Second Amendment challenge to Massachusetts’ concealed carry regulations and the permitting standards implemented by law enforcement agencies in Boston and Brookline. The challenged policies require applicants to demonstrate a “proper purpose” to carry concealed guns in public in order to receive an unrestricted concealed carry permit, as opposed to a permit that is restricted to sport shooting or carrying a gun in the scope of one’s employment. Plaintiffs filed a lawsuit claiming that this proper-purpose standard violates the Second Amendment—taking the extreme position that unrestricted permits should be issued to applicants who do not meet the standard.

Giffords Law Center’s Brief: Our brief argues that Massachusetts’ concealed carry regulations comport with the Second Amendment because they are consistent with longstanding public carry restrictions dating back to the Founding and earlier. Further, we summarize the latest reputable research on the connection between carrying guns in public and crime, which overwhelmingly shows that relaxing concealed carry laws leads to increased violent crime and homicide. No credible data supports the weak hypothesis, advanced by gun lobby lawyers and by some discredited researchers, that concealed carry has a crime-deterring effect.

Read the full text of our amicus brief here.

Love v. State of Florida: Opposing a Dangerous and Unconstitutional “Stand Your Ground” Amendment

Case InformationTashara Love v. State of Florida, No. SC18-747 (Florida Supreme Court brief filed Oct. 29, 2018).

At Issue: Florida’s “shoot first” Stand Your Ground law allows a person to use deadly force in public in self-defense, even if the person can safely retreat. Florida’s extreme version of this law facilitated the shooting of an unarmed 17-year-old, Trayvon Martin, who was killed when a shooter followed the teen through his own neighborhood, then claimed he needed to shoot Martin in self-defense. In 2017, the Florida legislature passed an even more extreme modification to Stand Your Ground: a “burden-shifting” amendment that would require prosecutors to prove at a pretrial hearing that a defendant who shot someone is not entitled to immunity from prosecution. This reverses the existing procedure, where people who use deadly force need to make an initial showing that Stand Your Ground applies to them. The Florida Supreme Court is now considering the constitutionality of this burden-shifting amendment.

Giffords Law Center’s Brief: Giffords Law Center’s amicus brief argues that the burden-shifting amendment is unconstitutional and violates separation-of-powers principles (principles that fully resolve the Love case but which neither party addressed). Florida’s Constitution gives courts the exclusive power to adopt procedural rules, and the legislature may not take over that function. However, in violation of the state constitution, the legislature passed a 2017 amendment that directly conflicts with rules the state Supreme Court previously announced to implement the intent of Florida’s Stand Your Ground law. In addition to explaining how the burden-shifting amendment usurps the core judicial function of setting court procedures, our brief presents credible research showing that states with Stand Your Ground laws experience increased gun violence, including homicides, and that these laws disparately impact people of color. Shifting the burden of proof away from defendants who use deadly force will exacerbate these unacceptable public safety risks in Florida.

Read the full text of our brief in Love here.