Settle v. Elhert: Fighting for Background Checks in Virginia

Case Information: Settle v. Elhert (Va. Supreme Court Brief filed July 29, 2020)

At Issue: Earlier this year, Virginia passed a law requiring background checks for private firearm sales. People under the age of 21 were subsequently restricted in purchasing handguns because gun dealers could no longer run federal background checks on these purchasers under the federal handgun minimum age law, which bars people under 21 from buying handguns from federally licensed dealers. An individual plaintiff and Gun Owners of America filed suit claiming that the background check requirement generally, and its resulting age restriction on handgun purchases, violates the Virginia Constitution. A Virginia circuit court found that the background check law generally did not violate the Virginia Constitution, but that it was unconstitutional as applied to 18-to-20 year olds, and blocked the state from enforcing the background check requirement on people in that age group. 

Our Brief: We joined Everytown for Gun Safety in an amicus brief arguing that the circuit court incorrectly used an outlier “history and tradition” framework to evaluate the law’s constitutionality and should have applied the two-step Second Amendment test that is used by every federal court of appeals. The US Supreme Court has left this Second Amendment test in place for years, despite having many opportunities to offer differing guidance. We show that the reasoning the circuit court used to reject the two-step test was unsound, and argue that Virginia’s law is constitutional under the test as applied to people ages 18-20. 

Read the full text of our amicus brief here.

Firearm Owners Against Crime v. Harrisburg: Defending Local Innovation in Pennsylvania

Case Information: Firearm Owners Against Crime v. City of Harrisburg, No. 29 MAP 2020 (Pa. Supreme Court Brief filed July 8, 2020)

At Issue: Pennsylvania was one of the first states to adopt an expansive Home Rule regime, which gives cities and other local governments broad powers to pass ordinances addressing local needs. This freedom encourages local legislative experimentation that can test innovative solutions to community problems, some of which have later been adopted on the state level. At the behest of the gun lobby, however, Pennsylvania enacted a preemption law at the state level which limits local governments’ ability to pass ordinances regulating firearms or ammunition. Plaintiffs challenged some of Harrisburg’s local ordinances under Pennsylvania’s preemption law. The Commonwealth Court ruled in favor of the plaintiffs. The case is now on appeal before the Supreme Court of Pennsylvania.

Giffords Law Center’s Brief:  We joined Ceasefire Pennsylvania Education Fund to write an amicus brief on behalf of over 60 local officials, religious leaders, community organizations and gun violence prevention groups. Traditionally, in order to bring a lawsuit challenging a law, plaintiffs must prove that they have standing—they must show that they have been harmed by the law. In this case, none of the plaintiffs have been charged with violating any of the ordinances in question, so under Pennsylvania’s current standing doctrine, the lawsuit they brought should not have been allowed to continue. However, the lower court did allow it. Our brief urges the Pennsylvania Supreme court to reverse the lower court’s decision on this basis. We argue that the expanded view of standing reflected in the lower court’s decision is legally unsupported and disproportionately benefits individuals and organizations opposed to government efforts to reduce gun violence without similarly benefiting people and organizations in favor of government action.

Read the full text of our amicus brief here.

Maryland Shall Issue v. Hogan: Protecting Strong Trigger Activator Restrictions

Update — On June 29, 2020, the 4th Circuit issued a favorable decision upholding Maryland’s trigger activator law, siding with the position argued in Giffords Law Center’s amicus brief.

Case InformationMaryland Shall Issue Inc. v. Hogan (4th Cir. amicus brief filed April 19, 2019).

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 enough to close this loophole, Maryland prohibited the possession and sale of bump stocks and other rapid fire trigger activators that let shooters mimic automatic fire with semiautomatic rifles. Following the enactment of this lifesaving legislation, plaintiffs filed this lawsuit arguing that Maryland’s rapid fire trigger activator 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, first, that plaintiffs’ challenge to Maryland’s law is now moot to the extent they are challenging restrictions on bump stocks that have since been adopted at the federal level by the ATF. Second, to the extent plaintiffs seek to challenge Maryland’s restrictions on other dangerous trigger activators, including trigger cranks and hellfire triggers, we argue that plaintiffs’ unsupported Takings Clause argument is foreclosed by Supreme Court precedent demonstrating that governments may use their police powers to restrict the possession and use of dangerous products. By regulating rapid fire 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 rapid fire trigger activators does not implicate the Takings Clause at all.

Read the full text of our amicus brief here.

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

Update — On June 29, 2020, the Colorado Supreme Court issued a favorable decision upholding Colorado’s large-capacity magazine ban, siding with the position argued in Giffords Law Center’s amicus brief.

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.

Rhode v. Becerra: Fighting to Protect Ammunition Background Checks

Case Information: Rhode v. Becerra, No. 20-55437 (9th Cir. brief filed June 19, 2020).

At Issue: In 2016, California voters approved Proposition 63, a ballot measure that, among other things, required in-person sales and background checks for ammunition. As in most states, ammunition in California was previously unregulated and could be ordered in mass quantities from the internet, no questions asked. In 2018, opponents of Prop. 63 , including out-of-state ammunition sellers who wish to sell ammunition online to Californians without a background check, filed a lawsuit claiming that the new background check law violates the Second Amendment and the Dormant Commerce Clause. The district court agreed with the sellers that their businesses were disadvantaged and issued a preliminary injunction, blocking the law. The case is now on appeal before the Ninth Circuit, which has stayed the district court’s injunction, allowing ammunition background checks to continue in California.

Giffords Law Center’s Brief: Though we disagree with the district court’s Second Amendment analysis, our brief focuses on the Dormant Commerce Clause. The US Constitution’s Commerce Clause has a so-called “dormant” component that prevents states from adopting laws that interfere with interstate commerce by discriminating against out-of-state businesses. Our brief argues that an ammunition background check law and face-to-face purchase requirement does not discriminate against out-of-state commerce in this way, and the district court applied the wrong legal standard for deciding the issue. First, we point out that California’s law sets the exact same requirements for in-state and out-of-state online ammunition retailers. Then, we argue that plaintiffs presented no other evidence that out-of-state online sales were disadvantaged over in-state sales originating online. Finally, our brief explains that if the district court’s illogical analysis of the Dormant Commerce Clause were applied universally, every long-standing law requiring that transactions of regulated items be completed face to face (eg. alcohol, firearm, and cigarette sales) could be considered unconstitutional, and the ammunition industry would improperly be able to evade these longstanding, commonsense business regulations.

Read the full text of our amicus brief here.

Modern Sportsman v. US: Representing Gun Owners Who Support the Federal Bump Stock Ban

Case Information: Modern Sportsman v. United States, No. 20-1107 (Fed. Cir. brief filed June 2, 2020).

At Issue: On October 1, 2017, a gunman armed with multiple 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 and hitting 422 others with bullets or shrapnel. Following the shooting, the Bureau of Alcohol, Tobacco, and Firearms (ATF) ruled that bump stocks, which modify semiautomatic firearms to shoot at near-automatic speeds, should be classified as prohibited machine guns, and gave owners 90 days to either destroy or surrender their bump stocks. A coalition of bump stock sellers and purchasers challenged the ATF’s rule under the Takings Clause of the Fifth Amendment, which requires “just compensation” if private property is taken for public use. The federal trial court dismissed their complaint, and the case is now on appeal before the Federal Circuit.

Giffords Law Center’s Brief: We filed a brief in this case on behalf of 15 gun owners who support reasonable gun safety laws. In the brief, the gun owners argue that responsible gun owner or sellers were all aware that bump stocks existed to exploit a regulatory loophole in the machine gun ban, and shouldn’t have been surprised that the government acted to close this loophole. The Takings Clause analysis used by courts considers whether plaintiffs could have “reasonably anticipated” the possibility of regulation. It also considers precedent showing that the Takings Clause applies when property is taken for government use, not to products banned because they endanger the public. The gun owners’ brief argues that since responsible gun owners and sellers anticipated bump stocks would be banned to protect public safety, the court should reject the Takings Clause challenge.

Read the full text of our amicus brief here.

Young v. Hawaii: Supporting Strong Open Carry Licensing Laws in Hawaii

(Photo: AP/Houston Chronicle, Johnny Hanson)

Case Information: Young v. Hawaii, No. 12-CV-0336 (9th Cir. en banc brief filed June 4, 2020).

At Issue: Hawaii requires individuals to obtain a license to openly carry firearms in public. On July 4, 2018, a divided panel of three judges from the Ninth Circuit struck down this requirement, finding that it violated the Second Amendment, and that open carry is a “core” Second Amendment right. This contradicts previous decisions about similar public carry permitting laws in the Ninth Circuit and in four other federal circuit courts. The case is now on appeal to be heard again by the Ninth Circuit, this time en banc. 

Giffords Law Center’s Brief: Our brief argues that historical evidence and corpus linguistics studies confirm that open carry is not a “core” Second Amendment right, and was not considered a “core” right at America’s founding. Based on this information, our brief urges the court to reject the panel’s decision and side with the four federal circuits that have determined that public carry is not a “core” right. Our brief then argues that the appropriate standard of review for this law is intermediate scrutiny, and that Hawaii’s licensing law is constitutional under that standard because it serves a critical public safety purpose.

Read the full text of our amicus brief here.

Everytown v. ATF: Advocating for Access to Federal Trace Data for Gun Violence Research

Case Information: Everytown v. ATF, No. 19-3438 (2nd Cir. brief filed June 2, 2020).

At Issue: The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) collects information on firearms recovered in criminal investigations, known as “trace data.” In 2003 Congress passed an amendment known as the Tiahrt Rider which limited ATF’s ability to release trace data, which had previously been accessible to researchers and the public. However, in 2009, Congress passed the OPEN FOIA act, which required statutes creating categories of data intended to be exempt from Freedom of Information Act (FOIA) requests to include specific language. The most recent enactments of the Tiahrt Rider do not include this language, yet ATF still claims that trace data is exempt from disclosure under FOIA. Everytown sued ATF for its failure to produce trace data after a FOIA request, and a federal district court agreed that Everytown is entitled to this data and ordered ATF to produce it. The case is now on appeal before the Second Circuit.

Giffords Law Center’s Brief: We partnered with Brady to write an amicus brief in support of Everytown’s request for trace data. Our brief argues that ATF is required to release the requested information under the OPEN FOIA Act, and furthermore, that information contained in ATF tracing database is critical to the study of gun trafficking and to the development of successful supply-side strategies to prevent gun crime. Our brief provides several examples of how research using trace data has provided useful information to policymakers and law enforcement. We further argue that ATF’s withholding of trace data since 2003 has impeded research into illegal gun markets and supply-side strategies to combat gun violence. 

Read the full text of our amicus brief here.

Rupp v. Becerra: Joining with Survivors of the 101 California Street Shooting

Case Information: Rupp v. Becerra, No. 19-56004 (9th Cir. brief filed June 2, 2020).

At Issue: On July 1, 1993, a man armed with three handguns—two of which were semiautomatic assault pistols fitted with “hellfire triggers”—killed eight people and injured six others at the law offices of Pettit & Martin at 101 California St. in San Francisco. Survivors of this devastating mass shooting later founded the Legal Community Against Violence, the organization that is now Giffords Law Center to Prevent Gun Violence. The group’s advocacy fueled the fight to pass the former federal assault weapons ban and led states, including California, to strengthen restrictions on military-grade weapons. In 2017 the NRA brought a lawsuit against the California Assault Weapons Control Act (AWCA), seeking to undo survivors’ progress and market assault weapons in the state. The case is now on appeal, and on June 2, 2020, we joined with survivors of the 101 California shooting to file an amicus brief in the case.

Giffords Law Center’s Brief: Our brief tells the stories of survivors who lost spouses, friends, and colleagues at 101 California, illustrating the enormous harm these weapons wreak upon individuals, families, and communities. The brief tells their stories in order to make the case that the government’s interest in public safety extends beyond merely reducing death and injury, and that when weighing the government’s public safety interest, courts must consider the loss and trauma of survivors and communities. Our brief also argues that laws like the AWCA are manifestations of the efforts of communities harmed by gun violence to protect themselves, and that the courts should recognize survivors’ rights to participate in our democracy by advocating for gun safety laws after a tragedy like 101 California.

Read the full text of our amicus brief here.

Mitchell v. Atkins: Supporting Washington State Gun Safety Voters & Initiative 1639

Case Information: Mitchell v. Atkins, No. 3:19-CV-05106-RBL (W.D. Wash. brief filed April 7, 2020).

At Issue: In 2018, voters in Washington State approved a ballot initiative (Initiative 1639) which, among other things, raised the minimum age to buy semiautomatic assault rifles to 21 from 18. Plaintiffs claim that the age restriction imposed by the initiative is unconstitutional because it prevents 18-to-20 year olds from exercising their Second Amendment rights to own semiautomatic rifles.

Giffords Law Center’s Brief: Our brief, jointly filed with Brady, argues that Washington’s age restriction law does not affect conduct protected by the Second Amendment. We then argue that even if the court finds that the law does affect protected conduct, this law easily survives intermediate scrutiny. Due to 18-to-20-year-olds’ higher rate of suicide attempts and the risk of this demographic carrying out mass shootings at schools, and the disproportionate use of rifles in suicides by 18-to-20-year-olds, this law is a reasonable fit to address the substantial public safety goal of reducing gun deaths. Our brief further argues that the “semiautomatic assault rifles” regulated by Washington’s law are an exceptionally lethal subset of long guns, and that by defining the group of weapons based on the mechanical traits that enable their lethality instead of external features like pistol grips, the law limits possible attempts to circumvent regulation through slight modifications to feature designs.

Read the full text of our amicus brief here.