Worman v. Healey: Defending Massachusetts’ Assault Weapons and Magazine Restrictions

Update — On April 26, 2019, the US Court of Appeals for the First Circuit issued a favorable decision rejecting the plaintiffs’ challenge to Massachusetts’ assault weapon and magazine regulations, siding with the position Giffords Law Center argued for in our amicus brief.

Case information: Worman et al. v. Healey et al. (1st Cir. brief filed Sept 28, 2018).

At Issue: The state of Massachusetts has prohibited the sale, transfer or possession of assault weapons and large capacity magazines (“LCMs”) since 1998. Its law restricts civilian access to weapons of military origin that are ill-suited for self defense and frequently employed in mass shootings and attacks on law enforcement officers. Plaintiffs in this case bring Second Amendment and other constitutional challenges to Massachusetts’ law. The district court rejected their challenge and upheld the law on the grounds that neither assault weapons nor LCMs are protected by the Second Amendment. The case is now on appeal before the First Circuit.

Giffords Law Center’s Brief: Our brief argues that the challenged law regulates conduct that falls outside the scope of the Second Amendment because assault weapons and LCMs are “most useful in military service, dangerous, not typically possessed for lawful purposes, and not in ‘common use.’” We also argue that, in the alternative, even if this law does implicate the Second Amendment, it easily passes constitutional review under intermediate scrutiny (the appropriate level of review in this context).

Read the full text of our amicus brief here.

Hirschfeld v. ATF: Defending the Minimum Age to Buy a Handgun from a Licensed Dealer

Case Information: Hirschfeld et al. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives et al. (W.D. Va. amicus brief filed April 17, 2019).

At Issue: Over 50 years ago, after finding that minors under the age of 21 were disproportionately responsible for “serious crimes of violence,” and that licensed dealers were a major source of their weapons, Congress adopted a federal law barring minors under the age of 21 from buying handguns from federally licensed firearm dealers (FFLs). Other courts have upheld the law as constitutional, but two plaintiffs recently filed a new legal challenge alleging that it impermissibly burdens the Second Amendment rights of 18-to-20-year-olds. Our brief argues that plaintiffs’ challenge must fail because the minimum age regulation falls outside of the Second Amendment’s protection, and that even if it implicates the Second Amendment, it passes constitutional muster under intermediate scrutiny, the highest appropriate level of review.

Giffords Law Center’s Brief: First, our amicus brief surveys social science research about impulsivity 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 acknowledge that minors attempt suicide at disproportionately high rates and access to firearms increases the likelihood and lethality of these attempts. We then argue that the challenged federal restriction falls outside the protection of the Second Amendment because it is consistent with longstanding historical limitations on the right to keep and bear arms that were explicitly recognized as legitimate in the Heller decision. Finally, we argue that even if the court were to apply heightened scrutiny, because there is a reasonable fit between the challenged regulation and the ‘substantial governmental objective’ of protecting public safety, this regulation passes intermediate scrutiny.

Read the full text of our amicus brief here.

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

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.

Culp v. Madigan: Defending Firearm Carry Permit Standards and Public Safety in Illinois

Update — On April 12, 2019, the Seventh Circuit issued a favorable decision rejecting the challenges to Illinois’s concealed carry permit regulations for non-residents, siding with the position Giffords Law Center argued for in our amicus brief.

Case Information: Culp v. Madigan, No. 17-2998 (7th Cir. brief filed April 16, 2018)

At Issue: Illinois bars non-residents from applying for an Illinois concealed carry permit unless the applicant’s home state’s laws are substantially similar to Illinois’. Since many states have lax laws and keep deficient records for permit applicants, this requirement is necessary to ensure that Illinois is able to adequately verify criminal records and mental health history before issuing a carry permit to a non-resident. The non-resident plaintiffs in this case contend that these sensible limitations violate the Second Amendment, and claim an absolute right to apply for a concealed carry permit in Illinois even though they don’t reside there.

Giffords Law Center’s Brief: Our amicus brief argues that the Second Amendment allows states to impose licensing and record-verification requirements on people seeking to carry loaded, concealed weapons in public. The challenged Illinois laws place only a modest burden on plaintiffs’ asserted right to carry a concealed weapon because none of the plaintiffs live in Illinois. Further, our brief refutes plaintiffs’ unsupported claim that restricting non-resident permit applications has no public safety benefit. There are documented lethal flaws with the lax concealed carry permitting systems in place in many states, which have resulted in permits being improperly issued to people with violent criminal histories.

Read the full text of our amicus brief here.

Nicholson v. Lee: Confronting the Tragic Consequences of Negligent Gun Storage

Case information: Nicholson v. Lee, No. 18A-CT-1949 (Indiana Supreme Court Brief, filed April 1, 2019)

At issue: In July 2016, Christopher Lee parked his truck in a public area and left it unattended and unlocked with a loaded handgun on the seat. A 15-year-old took the handgun from the truck. Later, when he was showing the gun to his friend Matthew Kendall, the gun fired, killing Kendall. Nicholson v. Lee is a wrongful death lawsuit in which Kendall’s mother Shelly Nicholson sued Lee, alleging that his negligent storage of his handgun proximately caused her son’s death. The district and appeals courts have both found that Lee is immune from liability for this negligent storage under Indiana Code 34-30-20-1. Our brief argues that this section of the Indiana Code does not confer immunity for tort claims arising from negligent storage of firearms.

Giffords Law Center’s Brief:  We joined Indiana University Bloomington Maurer School of Law Professor Jody L. Madeira in filing this brief, which argues that the previous courts misinterpreted the statute that was used to find Lee immune from liability. First, we argue that Indiana Code 34-30-20-1 immunizes people only from acts or omissions related to their use of a firearm, not acts related to storage. We further argue that Indiana Code 34-30-20-1 specifically excludes negligent storage from immunity because early versions of the bill included immunity for acts or omissions related to the “storage or monitoring of a firearm that is used by a third party in commission of a crime” — language which was removed by the legislature before the bill was enacted.

Read the full text of our amicus brief here.

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

Update — On April 1, 2019, the D.C. Circuit rejected all challenges to the federal bump stock ban and allowed it to fully take effect, as argued for in our amicus brief.

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.

Soto v. Bushmaster: Supporting the Sandy Hook Families

Assault Weapons

Update — On March 14, 2019, the Connecticut Supreme Court issued a favorable decision allowing the Sandy Hook families to proceed with their claim against the maker of the assault weapon used in the shooting under the Connecticut Unfair Trade Practices Act, the outcome argued for in our amicus brief.

Case Information: Soto et al. v. Bushmaster et al., S.C. Nos. 19832 & 19833 (Connecticut Supreme Court brief filed Mar. 20, 2017).

At Issue: This case involves claims brought by families of the victims killed at Sandy Hook Elementary in Newtown, Connecticut, against the sellers and maker of the assault weapon used in the shooting. The families’ lawsuit claimed that the marketing and sale of the assault weapon violated Connecticut’s Unfair Trade Practices Act (CUTPA), but the Connecticut Superior Court concluded that the families lacked standing to sue under CUTPA because they were not in a “business relationship” with the defendants. The Connecticut Supreme Court agreed to hear the families’ appeal from the decision dismissing their lawsuit.

The Law Center’s Brief: We filed an amicus brief in support of the plaintiff families. Our brief argues that requiring a business relationship for standing under CUTPA conflicts with the decisions of courts in a number of other states, which have interpreted similar trade practices laws to confer standing on all parties injured by violations. Our brief included a 50-state survey of relevant unfair trade practice laws, and concluded that of the fourteen states with laws similar to Connecticut’s, none have required a “business relationship,” and six have affirmatively found that no business relationship is required for an injured plaintiff to have standing.

Read the full text of our amicus 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.