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.

NYSRPA v. City of New York: The Supreme Court Must Protect Rights and Public Safety

Case Information: New York State Rifle & Pistol Ass’n v. City of New York, No. 18-280 (Supreme Court brief filed May 14, 2019)

At Issue: On January 22, the Supreme Court agreed to review a Second Amendment challenge brought by the New York state affiliate of the National Rifle Association, marking the first time in nearly a decade that the justices will hear argument in a Second Amendment case. The NRA and individual plaintiffs filed suit against a unique New York City gun possession licensing law that restricts the ability of gun owners who do not have concealed carry permits to transport handguns outside their homes or other licensed premises. The challengers, who are seeking to take guns licensed for the home to ranges outside New York City and to second homes in the state, claim these licensing restrictions violate the Second Amendment and other constitutional rights. Going beyond the immediate facts of the case, the challengers also urge the Court to ignore public safety justifications for gun regulations challenged under the Second Amendment, suggesting the Court should recognize a broad right to carry guns whenever desirable for self-defense without regard to the dangers this creates for others.

Giffords Law Center’s Brief: We filed an amicus brief in support of neither party in order to oppose the gun lobby’s attempt to use a narrow legal challenge to advance a radical interpretation of the Second Amendment and broadly attack gun safety laws that have repeatedly been found to be constitutional. Since the Supreme Court decided District of Columbia v. Heller in 2008, courts have consistently upheld strong firearm regulations, following Heller‘s instruction that the Second Amendment is “not unlimited” but allows for lifesaving gun safety laws like concealed carry regulations, laws prohibiting dangerous people from accessing guns, and safe storage requirements. Our brief argues that the Supreme Court shouldn’t use this case to disturb Heller’s endorsement of settled gun safety laws and that if the justices do announce a Second Amendment methodology, the Court should treat the Second Amendment like other constitutional rights and recognize reasonable regulations that further public safety. We also argue that the radical approach suggested by the NRA is unworkable and would threaten critically important laws like those that restrict gun access by domestic abusers.

Read the full text of our amicus brief here.

People v. Brown: Fighting for Firearm Licensing and Background Check Laws

Case Information: People of the State of Illinois v. Brown, No. 124100 (Ill. S. Ct. brief filed April 26, 2019)

At Issue: As part of the Illinois Firearm Owners Identification Card Act (FOID Card Act), Illinois requires individuals to obtain a license to possess firearms, called a Firearm Owner Identification Card (FOID). The licensing law is how Illinois conducts background checks on firearm purchasers and enforces other important gun regulations. In 2017, the defendant in this case was charged with possessing a firearm without a FOID, and in 2018 an Illinois trial court dismissed the charges on the grounds that the FOID Card Act violates the Second Amendment. That ruling, which is an extreme outlier among federal and state courts, is now on appeal before the Illinois Supreme Court.

Giffords Law Center’s Brief: Our brief argues that the lower court’s decision flies in the face of repeated decisions from the Illinois Supreme Court, the Illinois appellate courts, and the U.S. Court of Appeals for the Seventh Circuit, which have all upheld the constitutionality of the FOID Card Act and its background check and other requirements. We further argue that even if the court were to review the FOID Card Act anew, it easily withstands intermediate scrutiny because it serves an important government interest in reducing violence and protecting public safety. To support this argument, we cite empirical research that found that firearm licensing laws significantly reduce gun homicides and suicides and limit criminals’ ability to gain access to firearms.

Read the full text of our amicus brief here.

N.Y. Rifle & Pistol v. Beach: Supporting Strong Licensing Standards for Concealed Carry

Case InformationN.Y. State Rifle & Pistol Ass’n v. Beach, No.  (2d Cir. brief filed May 1, 2019).

At Issue: This case involves a Second Amendment challenge to the state of New York’s concealed carry licensing standards. The challenged regulations require applicants to demonstrate “proper cause” 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.

Giffords Law Center’s Brief: Our brief argues that New York’s concealed carry regulations survive intermediate scrutiny because the proper cause requirement, carefully designed to protect the safety of New York’s communities, serves compelling public safety interests. 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 successfully in self-defense in public spaces, and that carrying a gun escalates everyday disputes (like “road rage” incidents) and may actually increase one’s chance of being shot in an assault.

Read the full text of our amicus brief here.