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

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.

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.

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

Update — On July 26, 2019, the trial court struck down all the penalty provisions in Florida’s extreme preemption law, siding with the position Giffords Law Center argued for in our amicus brief.

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.

Rupp v. Becerra: Defending California’s Assault Weapon Restrictions

Update — On July 22, 2019, the district court issued a favorable decision rejecting the NRA’s challenge to California’s assault weapon regulations, siding with the position Giffords Law Center argued for in our amicus brief.

Case information: Rupp et al. v. Becerra et al., No. 18:17-cv-00746-JLS-JDE (C.D. Cal. brief filed April 1, 2019)

At issue: In 2017 the California state affiliate of the NRA and several individual plaintiffs filed a lawsuit raising Second Amendment and other constitutional challenges 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 (and many more).

Giffords Law Center’s Brief: Our brief argues that the California legislature acted constitutionally by prohibiting a subset of semiautomatic rifles 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.

Read the full text of our amicus brief here.

Duncan v. Becerra: Urging the Ninth Circuit to Reverse a Dangerous, Outlier Ruling on LCMs

Case Information: Duncan et al. v. Becerra et al., No. 19-55376 (9th Cir. amicus brief filed July 22, 2019)

At Issue: For nearly 20 years, California has prohibited the manufacture and sale of large capacity magazines (LCMs) that can hold more than 10 rounds of ammunition. In November 2016, California voters overwhelmingly approved Proposition 63, a package of gun safety laws drafted by Giffords Law Center attorneys in partnership with then-Lieutenant Governor Gavin Newsom. One of Prop. 63’s provisions strengthened the state’s LCM laws by prohibiting the possession of LCMs like those used in the San Bernardino and Thousand Oaks mass shootings. Before Prop. 63 took effect, the state affiliate of the NRA brought a Second Amendment challenge to the law, and persuaded a federal district judge to issue an extreme ruling blocking implementation of the law’s LCM provisions and enjoin California’s longstanding restrictions on LCMs. The judge’s unprecedented ruling was a radical departure from settled Second Amendment law, and is now on appeal before the Ninth Circuit.

Giffords Law Center’s Brief: Our brief argues that the district court overstepped in disregarding the State’s concerns about mass shootings in favor of the court’s own view of what problems a successful gun-violence-prevention policy should prioritize. In this case, the district court attacked evidence and expert witnesses the State reasonably relied on, while engaging in its own flawed fact-finding to reach a verdict. The lower court acted contrary to Ninth Circuit precedent by failing to defer to the State’s legitimate policy judgments, which were supported by evidence showing that restricting large-capacity magazines would protect the public and reduce mass shooting deaths and injuries. Our brief urges the Ninth Circuit to reverse the decision of the district court and protect the State’s authority to identify and prevent harm to its citizens.

Read the full text of our amicus brief here.