2nd Amendment Thread

[de officiis]

SCOTUS denies cert for a Ninth Circuit Court of Appeals decision affirming application of a San Francisco law that prohibits private citizens from keeping handguns operable for the purposes of immediate self-defense when not carried on their person.

As Justice Thomas observed [in his dissent], the San Francisco ordinance prevents people from keeping their handguns operable when they are "sleeping, bathing, changing clothes, or otherwise indisposed"--when "they are at their most vulnerable."

http://www.huffingtonpost.com/evan-bern ... 52390.html

[de officiis]

FLORIDA FIREARMS LAW, USE AND OWNERSHIP

Jon Gutmacher - Reviewed by Pearl Goldman - 89 Fla. Bar J. 112 (June 2015)

Florida attorney Jon Gutmacher has released a completely rewritten eighth edition of his book, Florida Firearms Law, Use & Ownership. This expanded 331-page, 13-chapter Ownership edition provides in-depth coverage of Florida and federal law, with additional sections on the laws of Alabama, Georgia, North Carolina, and South Carolina. The author begins with a discussion of the Second Amendment and its influence on landmark constitutional cases. Further chapters address qualifications for purchase and possession of firearms, the application process, removal of legal disabilities, concealed weapons licenses, transportation and carrying, common weapons violations, laws affecting children, and laws pertaining to firearms dealers. Where relevant, Mr. Gutmacher breaks down the state and federal laws governing particular situations, summarizes relevant cases, and points out where the law is unclear.

http://www.floridabar.org/DIVCOM/JN/JNJ ... enDocument

Amazon link to book: http://www.amazon.com/Florida-Firearms- ... +OWNERSHIP

[de officiis]

HOW FAR WILL THE STRICTEST STATE PUSH THE LIMITS: THE CONSTITUTIONALITY OF CALIFORNIA'S PROPOSED GUN LAW UNDER THE SECOND AMENDMENT

Lauren Paglini - 23 Am. U.J. Gender Soc. Pol'y & L. 459 (2015)

This Comment argues that Assembly Bill 1014 [which allows police to temporarily seize guns from people who pose a threat to themselves or others] does not infringe on an individual's Second Amendment constitutional right to bear arms because the bill is narrowly tailored to prevent gun violence as it targets only dangerous individuals. 15 Part II discusses Assembly Bill 1014 and summarizes the basic principles of Second Amendment jurisprudence. 16 Part III argues that since the Supreme Court has not yet established an appropriate standard for Second Amendment analysis, courts should use First Amendment jurisprudence as guidance in determining the appropriate level of scrutiny to employ when analyzing Second Amendment claims. 17 Part III explains how Assembly Bill 1014 survives the requisite intermediate scrutiny analysis and further survives strict scrutiny - the highest level of scrutiny applied by the courts. 18 Part IV recommends that other states should consider the impact of gun violence by passing legislation similar to California's Assembly Bill 1014. 19 Part V concludes by reiterating that California's Assembly Bill 1014 is constitutional because it survives both intermediate and strict scrutiny.

http://digitalcommons.wcl.american.edu/ ... text=jgspl


HELLER ON THE THRESHOLD: CRAFTING A GUN INSURANCE MANDATE

Rob Hillenbrand - 95 B.U.L. Rev. 1451 (July 2015)

This Note will analyze one of the more creative recent legislative proposals to address the gun violence problem: mandatory liability insurance for gun owners. 18 Legislatures in California, 19 Connecticut, 20 the District of Columbia, 21 Illinois, 22 Maryland, 23 Massachusetts, 24 New York, 25 and Pennsylvania 26 have all introduced bills that would require gun owners to purchase liability insurance for their guns - although these bills vary considerably as to their content. 27 Moreover, congressional Democrats introduced the federal Firearms Risk Prevention Act, which would impose a nationwide liability insurance mandate. 28 At this point, none of these legislatures have passed their bills or any other similar measures. Yet, many continue to mull over these policies, questioning their practicality, constitutionality, and effectiveness. 29 So what exactly might a practical, constitutional, and effective mandate look like? Part I of this Note will consider the practicality of a mandate, reviewing insurance policy and law in the context of car insurance and drawing analogies from car safety to the gun violence problem. Part II will discuss the constitutionality of a mandate in light of District of Columbia v. Heller, 30 McDonald v. City of Chicago, 31 and subsequent lower court cases. Part III will examine key components of a practical, constitutional, and effective mandate and offer solutions for future legislative efforts.

http://www.bu.edu/bulawreview/files/201 ... NBRAND.pdf


Alabama Supreme Court shoots down law banning open carry of pistol 'on premises not one's own

Kent Faulk - AL.com - 9/5/15

The Alabama Supreme Court on Friday ruled a state law that banned the open carry of a gun on someone else's property is unconstitutional.

...

"This is definitely a victory for gun rights advocates," said J.D. Lloyd, one of Tulley's appellate lawyers. "More importantly, it's a victory for folks who believe in Due Process and don't want to see the Legislature passing vague criminal statutes."

...

Tulley was prosecuted in the City of Jacksonville municipal court for violating a state law – 13A-11-52 - that prohibited "carrying a pistol on premises not one's own or under his control," court records show.

...

"At the heart of the case was their (the supreme court's) determination that the statute is unconstitutionally vague because it doesn't possess a punishment provision and the Code of Alabama doesn't supply a "catch-all" punishment provision for the offense," Lloyd said.

http://www.al.com/news/birmingham/index ... _stri.html

[de officiis]

Law prof sues university over concealed-carry ban

9/28/15 - Martha Neil - ABA Journal

An associate law professor has filed suit against the University of Missouri, contending that its ban on having firearms on campus contradicts a new state constitutional provision.

Royce de R. Barondes ... seeks a court order declaring that the ban is unconstitutional under an amendment approved by state voters last year. It says that courts must apply strict scrutiny to laws restricting the possession of firearms and ammunition . . . .

The Cole County Circuit Court complaint (PDF) also alleges that the school’s policy violates the Second and Fourteenth amendments of the U.S. Constitution by prohibiting the prof, who has a concealed-carry license, from keeping a gun on his person or in his vehicle.

http://www.abajournal.com/news/article/ ... _carry_ban

[de officiis]

Heller v. Dist. of Columbia, No. 14-7071 (U.S. Court of Appeals for the D.C. Circuit, Sept. 18, 2015)

Ginsburg, Senior Circuit Judge: At issue in this suit is the constitutionality of certain gun laws enacted by the District of Columbia. The district court determined as a matter of law that the District's efforts "to combat gun violence and promote public safety" by means of its registration laws were "constitutionally permissible." Heller v. District of Columbia, 45 F. Supp. 3d 35, 38 (D.D.C. 2014). Before this court, Dick Anthony Heller and his co-appellants challenge both the district court's admission of, and its reliance upon, certain expert reports proffered by the District and the final order denying Heller's and granting the District's motion for summary judgment.

We hold the district court's admission of the challenged expert reports was not an abuse of discretion. We affirm in part and reverse in part the district court's judgment in favor of the District.

I. Background

In District of Columbia v. Heller (Heller I) the Supreme Court held the District of Columbia's "prohibition of handguns held and used for self-defense in the home" was unconstitutional. 554 U.S. 570, 636, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008). Immediately thereafter, the D.C. City Council revised the District's gun laws by enacting the Firearms Registration Amendment Act of 2008 (FRA). D.C. Law 17-372.

The FRA created a "new scheme for regulating firearms." Heller v. District of Columbia, 670 F.3d 1244, 1248, 399 U.S. App. D.C. 314 (D.C. Cir. 2011) (Heller II). With limited exceptions, the FRA required the registration of all firearms in the District. D.C. Code § 7-2502.01. The law also imposed various conditions upon the registration of a firearm and limited the persons eligible to register a firearm by excluding, for example, individuals who within the prior five years had been convicted of certain drug or violent crimes or had a severe mental health problem, and individuals under the age of 18. Id. § 7-2502.03-.07. In addition, the FRA required the gun owner to renew the registration of his firearm(s) every three years, id. § 7-2502.07a, and prohibited registration — and hence possession — of certain firearms, such as short-barreled rifles and assault weapons. Id. § 7-2502.02.

In July 2008 Heller filed suit challenging the District's new registration scheme as inconsistent with the Second Amendment to the Constitution of the United States. The district court granted summary judgment to the District and Heller appealed.

On that appeal, we upheld the constitutionality of the District's "basic registration requirement," insofar as that requirement pertained to handguns. Heller II, 670 F.3d at 1254-55. We also upheld the portion of the FRA prohibiting registration, and therefore possession, of assault weapons and magazines with a capacity in excess of 10 rounds. Id. at 1247-48, 1264.

We reserved judgment as to the constitutionality of the District's basic registration requirement for long guns, the conditions under which a registration certificate would be issued, and the duration for which such a certificate would be valid. Id. at 1255, 1258-60. We held that both the basic registration requirement for long guns, if not de minimis, and the conditions for registration were subject to intermediate scrutiny, and that the record as it then stood was not sufficient for us to evaluate whether those laws were narrowly tailored to serve an important governmental interest. Id. at 1258. We therefore remanded the case to the district court for further evidentiary proceedings. Id. at 1260.

Subsequently, the D.C. Council enacted the Firearms Amendment Act of 2012, D.C. Law 19-170, which repealed certain of the conditions for registration, such as the requirement that a pistol be submitted for ballistic identification as part of the registration process, and reduced the burden upon registrants imposed by other provisions. Heller then filed an amended complaint to take account of these legislative changes.

...

On this appeal, Heller argues ... the district court erred in upholding as constitutional: (1) the basic registration requirement as it pertains to long guns, D.C. Code § 7-2502.01(a); (2) the requirement that one appear in person to register a firearm and be fingerprinted and photographed, id. § 7-2502.04; (3) the requirement that the registrant bring with him the firearm to be registered, which requirement the Metropolitan Police Department (MPD) may or may not invoke as to a particular individual, id. § 7-2502.04(c); (4) the expiration of the registration after three years, id. § 7-2502.07a; (5) the imposition of certain fees for registration, id. § 7-2502.05(b); (6) the requirements that a registrant complete a firearms safety and training course or provide evidence of another form of training and that the registrant pass a test to demonstrate his knowledge of the District's firearms laws, id. §§ 7-2502.03(a)(13), 7-2502.03(a)(10); and (7) the prohibition on registration of more than one pistol per person in any 30-day period, id. § 7-2502.03(e).

II. Analysis

...

B. The constitutional challenges

We review the district court's summary judgment determination de novo, considering the evidence in the light most favorable to the non-moving party, i.e., Heller. See Ayissi-Etoh v. Fannie Mae, 712 F.3d 572, 576, 404 U.S. App. D.C. 291 (D.C. Cir. 2013).

In Heller II, we adopted a two-step approach to determining the constitutionality of the District's gun registration laws: "We ask first whether a particular provision impinges upon a right protected by the Second Amendment; if it does, then we go on to determine whether the provision passes muster under the appropriate level of constitutional scrutiny." 670 F.3d at 1252. We determined that level was intermediate scrutiny. Id. at 1252-53.

For a challenged provision to survive intermediate scrutiny, the District has to show, first, that it "promotes a substantial governmental interest that would be achieved less effectively absent the regulation," and second, that "the means chosen are not substantially broader than necessary to achieve that interest." Id. at 1258 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 782-83, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989)). To meet the first requirement, the District must demonstrate that the harms to be prevented by the regulation "are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 662-64, 114 S. Ct. 2445, 129 L. Ed. 2d 497 (1994) (Turner I). We do not, however, review de novo the District's evidence of the harm to be prevented and the likely efficacy of the regulation in preventing that harm. See id. at 666. Rather, it is our remit to determine only whether the District "has drawn reasonable inferences based on substantial evidence." Id. If it has done so, and if the means chosen are not overbroad, then "summary judgment ... is appropriate regardless of whether the evidence is in conflict." Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 185, 195-96, 211, 117 S. Ct. 1174, 137 L. Ed. 2d 369 (1997) (Turner II); see also Heller II, 670 F.3d at 1263 (upholding the District's ban on assault weapons on the basis that "the evidence demonstrates a ban on assault weapons is likely to promote the Government's interest in crime control").

1. Impingement

In Heller II we held the basic registration requirement as applied to handguns did not impinge upon the Second Amendment and was therefore constitutional. 670 F.3d at 1254-55 ("[The basic requirement to register a handgun is longstanding in American law .... Therefore, we presume the District's basic registration requirement including the submission of certain information does not impinge upon the right protected by the Second Amendment. Further, we find no basis in either the historical record or the record of this case to rebut that presumption.") (citations omitted); see also Heller I, 554 U.S. at 626-27 & n.26 ("longstanding" firearm regulations are "presumptively lawful"). We left open the question whether requiring the registration of long guns impinges upon the Second Amendment. 670 F.3d at 1255 n.**; see also D.C. Code § 7-2502.01(a). We now hold it does not.

Requiring the registration of handguns is legally different from requiring the registration of long guns only in that "basic registration of handguns is deeply enough rooted in our history to support the presumption that [it is constitutional," Heller II, 670 F.3d at 1253; the registration requirement for long guns lacks that historical pedigree. Id. at 1255.

Even absent the presumption that attends the pedigree, however, the basic registration requirement as applied to hand guns falls into the category of requirements that are "self-evidently de minimis, for they are similar to other common registration or licensing schemes, such as those for voting or for driving a car, that cannot reasonably be considered onerous." Id. at 1254-55. On Heller's previous appeal, we were unable to determine whether requiring the registration of long guns is similarly a de minimis burden because the record was "devoid of information concerning the application of registration requirements to long guns." Id. at 1255 n.**. We therefore allowed Heller, during the discovery proceedings on remand, the opportunity to introduce evidence that might differentiate the registration requirement for long guns from other registration requirements that undoubtedly entail a de minimis burden upon a constitutional right. As the district court subsequently determined, however, Heller offered no evidence distinguishing the basic registration requirement as applied to long guns. See Heller III, 45 F. Supp. 3d at 51. Indeed, he did not even argue the point.1

Footnote 1 In his reply brief in this court, Heller argued for the first time that the registration requirement impinges upon the Second Amendment right to bear arms because a person can "go to prison and receive a lifetime ban on possession of firearms for failure to register or reregister." See D.C. Code §§ 7-2502.03, 7-2507.06, 7-2502.08 (providing generally violation of the registration requirements may result in fines, imprisonment, and ineligibility to register weapons in the future). This assertion, however, is too little, too late. It comes too late because we do not ordinarily notice an argument that first appears in a reply brief. See Gunpowder Riverkeeper v. FERC, No. 14-1062, 2015 U.S. App. LEXIS 12532, 2015 WL 4450952, at *5 (D.C. Cir. July 21, 2015) ("[Arguments not clearly raised in a party's opening brief are generally considered to be forfeit"). In any event, it is too little because in Heller II we instanced other licensing schemes we think impose a de minimis burden 17 notwithstanding that failure to comply with those schemes may result in criminal penalties; so it is with the basic registration requirement for long guns. See Heller II, 670 F.3d at 1254-55 (describing licensing schemes "such as [that for ... driving a car" as "self-evidently de minimis"); D.C. Code § 50-1403.01(e) (providing that an individual found guilty of "operating a motor vehicle in the District" while that person's license is "revoked or suspended" may be fined or imprisoned for up to one year).

Because the burden of the basic registration requirement as applied to long guns is de minimis, it does not implicate the second amendment right. Heller II, 670 F.3d at 1255; see also Justice v. Town of Cicero, 577 F.3d 768, 773-75 (7th Cir. 2009) (holding local ordinance "requiring the registration of all firearms" is consistent with the Supreme Court's ruling in Heller I). It is therefore constitutional.

The additional registration requirements, however, cannot be said to be de minimis. In Heller II, we held the additional requirements, as they then stood, "affect[ed the Second Amendment right because they [were not de minimis" — that is, they "ma[de it considerably more difficult for a person lawfully to acquire and keep a firearm ... for the purpose of self-defense in the home." Id. at 1255. The subsequent repeal of some of those requirements and the amendment of others somewhat reduced the burden imposed upon District residents' exercise of their Second Amendment rights. The District does not go so far as to argue, however, that the amended requirements are de minimis. Those requirements are therefore subject to intermediate scrutiny.

2. Intermediate scrutiny

We previously identified two substantial governmental interests served by the registration requirements enacted by the District: (1) protecting police officers by enabling them to determine, in advance, whether guns may be present at a location to which they are called and (2) aiding in crime control. Heller II, 670 F.3d at 1258. On remand, the District recharacterized the second interest as a broader interest in "promoting public safety." Heller III, 45 F. Supp. 3d at 49. On appeal, the District identifies more particularly its interest in "protecting police officers" and reiterates its interest in "promoting public safety" generally.

Heller does not dispute that these are substantial governmental interests. Rather, he challenges the closeness of the fit between the asserted interests and the various registration requirements. We agree with Heller that the District has not offered substantial evidence from which one could draw a reasonable conclusion that the challenged requirements will protect police officers; but we think the District has pointed to substantial evidence that some of the requirements — but not others — will promote public safety.

a. Police protection

Heller argues the registration requirements do not advance the District's interest in protecting the police because MPD officers very rarely check the registration records in responding to a call, conducting an investigation, or executing a search warrant. The District responds that although the "MPD does not routinely check registration records prior to responding to a call for service ... such a check is a tool available for use in appropriate circumstances." It is undisputed that such checks have taken place, albeit rarely.

Therefore, the question remains whether that "tool" promotes the District's asserted interest in police protection. Discovery subsequent to our decision in Heller II indicates it does not.

According to the deposition testimony of an MPD officer, District police "are trained to treat situations where there might be a crime in progress or domestic dispute or some other situation possibly involving violence as always having a potential to have a dangerous weapon present." Further, one of the District's expert witnesses stated that if the registration system indicated no weapon was present at an address, then officers "would continue to exercise caution." The best the District's expert could offer was that positive confirmation of a gun might raise officers' "caution level ... that much higher."

The testimony of the District's own witnesses, therefore, indicates that the records established via the registration requirements, when queried at all, have little to no effect upon the conduct or safety of police officers. In light of this additional evidence, we agree with the statement of our colleague in Heller II that the asserted interest in police protection "leaves far too many false negatives to satisfy ... intermediate scrutiny." 670 F.3d at 1295 (Kavanaugh, J., dissenting).

b. Public safety

Drawing directly upon the Report of the Judiciary Committee of the D.C. Council with respect to the Firearms Amendment Act of 2012, the District claims the various registration requirements advance its interest in public safety by "distinguishing criminals from law-abiding citizens, enabling police to arrest criminals immediately, facilitating enforcement against prohibited persons obtaining or continuing to possess firearms, reducing gun trafficking, and increasing the difficulty for criminals to acquire guns." We next address whether the District has, with regard to each challenged registration provision, offered substantial evidence from which it could reasonably have concluded the provision will mitigate various threats to public safety "in a direct and material way," Turner I, 512 U.S. at 664, whether in one of the ways anticipated by the D.C. Council or otherwise.

i. In-person appearance, fingerprinting, and photographing, D.C. Code § 7-2502.04

The District has presented substantial evidence from which it could conclude that fingerprinting and photographing each person registering a gun promotes public safety by facilitating identification of a gun's owner, both at the time of registration and upon any subsequent police check of the gun's registration. The requirement that registrants appear in person is necessary in order for a photograph and fingerprints to be taken.

First, the fingerprinting requirement: The Report of the Committee on the Judiciary stated that "[the initial fingerprinting requirement is fundamental for the [MPD to fulfill its public safety obligations in registering firearms — being able to screen the registrant to ensure that he or she is not disqualified from possessing a firearm." In support of this assertion, the District points to the testimony of Chief Lanier, who said "[using biometrics [i.e., fingerprints to positively identify an individual is far more effective than relying simply on a name and social security number." Chief Lanier reiterates this conclusion in her expert declaration, and it is echoed in Webster's expert declaration.

In addition, the District points to evidence suggesting background checks using fingerprints are more reliable than background checks conducted without fingerprints, which are more susceptible to fraud. Specifically, the District points to an investigation conducted by the U.S. Government Accountability Office, in which five "agents acting in an undercover capacity used ... counterfeit driver's licenses in attempts to purchase firearms from gun stores and pawnshops that were licensed by the federal government to sell firearms." GAO-01-427, Firearms Purchased from Federal Firearm Licensees Using Bogus Identification 2 (2001). Those attempts were, without exception, successful. Id. at 2-3. The report concluded that federal background checks conducted by the firearm dealers "cannot ensure that the prospective purchaser is not a felon or other prohibited person whose receipt and possession of a firearm would be unlawful." Id. at 2.2

Footnote 2 The states in which the GAO conducted its study had adopted the National Instant Criminal Background Check System (NICS), see 18 U.S.C. § 922(t), under which, then as now, the following information is required of each individual who undergoes a NICS check: (1) name, (2) sex, (3) race, (4) date of birth, and (5) state of residence. 28 C.F.R. § 25.7. A dealer may, in addition, report the purchaser's Social Security or other identifying number and physical description. Id.

Heller argues the District has not experienced a problem with fraud in the registration of firearms. He also implies the problem is unlikely to arise, given the increased difficulty of manufacturing fraudulent identification documents today, as compared to 2001, when the GAO concluded its investigation. Even if this is true, however, a prophylactic disclosure measure such as the one at issue here survives intermediate scrutiny if the deterrent value of the measure will materially further an important governmental interest. See Barry v. City of New York, 712 F.2d 1554, 1559-61 (2d Cir. 1983) (upholding under intermediate scrutiny a law requiring financial disclosures by certain publicly employed individuals in the face of a right-to-privacy challenge on the basis that it could "help deter corruption," despite a "virtually corruption-free history" (citation and internal quotation marks omitted)). The GAO study indicates the fingerprinting requirement would, indeed, help to deter and detect fraud and thereby prevent disqualified individuals from registering firearms.

Regarding the requirement of a photograph: The Committee on the Judiciary emphasized "the importance of a registrant being able to present a registration certificate with a photograph, so police can quickly identify whether and to whom the firearm has been legally registered." The Committee pointed to the testimony of Chief Lanier, who asserted that "a certificate with a photo helps to quickly and safely communicate" the fact of registration to police officers, which, "in turn, helps to keep both the officer and the registrant safe." Heller, while maintaining that photographing a registrant will not deter fraud, does not contest that photographic confirmation of a registrant's identity would be beneficial to public safety when the police encounter an armed registrant. See D.C. Code § 7-2502.08(c) (“Each registrant shall have in the registrant's possession, whenever in possession of a firearm, the registration certificate, or exact photocopy thereof, for such firearm, and exhibit the same upon the demand of a member of the [MPD, or other law enforcement officer").

For the foregoing reasons, we believe the District has adduced substantial evidence from which it reasonably could conclude that fingerprinting and photographing registrants will directly and materially advance public safety by preventing at least some ineligible individuals from obtaining weapons and, more important, by facilitating identification of the owner of a registered firearm during any subsequent encounter with the police. Those requirements are therefore not unconstitutional. The additional requirement that registrants appear in person to be photographed and fingerprinted is but a corollary necessary to implement those requirements. See Heller II, 670 F.3d at 1249 n.* (noting that administrative provisions "incidental to the underlying regime" are "lawful insofar as the underlying regime is lawful").

ii. Bringing the firearm, D.C. Code § 7-2502.04(c)

The District argues that the "requirement that the firearm be made available for inspection allows MPD to verify that the application information is correct and that the firearm has not been altered or switched with another firearm." The District, however, has offered no evidence — let alone substantial evidence — from which it can be inferred that verification will promote public safety. The district court acknowledged as much when it noted that not one of the District's four experts "specifically addresse[d the requirement that registrants bring the gun to be registered with them." Heller III, 45 F. Supp. 3d at 59. The district court nonetheless deemed it a "common-sense inference" that "if in-person appearance is necessary to verify the identity of the registrant, then physically bringing the gun is similarly necessary to verify the character of the registered weapon." Id. Yet common sense suggests a person would not go to the trouble of obtaining a registration certificate for a weapon other than a weapon in his possession. On the contrary, common sense suggests that bringing firearms to the MPD would more likely be a threat to public safety; as Heller maintains, there is a "risk that the gun may be stolen en route or that the [would-be registrant may be arrested or even shot by a police officer seeing a 'man with a gun' (or a gun case)."

iii. Re-registration, D.C. Code § 7-2502.07a

The District has offered three justifications for the requirement that a gun owner re-register his firearm every three years. None is supported by substantial evidence from which the District could reasonably have concluded that requiring re-registration would advance an important governmental interest.

First, the District's experts argued that re-registration "will improve public safety by making sure that, in the time since [the gun owner first registered, [he has not fallen into a category of persons prohibited from owning a firearm." Heller III, 45 F. Supp. 3d at 67-68. As Heller rightly points out, however, "District officials and experts conceded [that background checks could be conducted at any time without causing the registrations to expire." The re-registration requirement cannot survive intermediate scrutiny on the (dubious) basis that it will make this task easier. Cf. McCullen v. Coakley, 134 S. Ct. 2518, 2540, 189 L. Ed. 2d 502 (2014) ("To meet the requirement of narrow tailoring, the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government's interests, not simply that the chosen route is easier").

Second, the District argues triennial re-registration will help to maintain the accuracy of the registration database. This seems self-evidently true, but it is far from an adequate reason for burdening every gun owner when there is already a requirement that gun owners report relevant changes in their information, such as a new address. D.C. Code § 7-2502.08 (requiring such reporting). To the extent that a gun owner's death or disposal of a registered gun is a fact of which the District should be aware, the District's registration requirements as applied to any new owner within the District should satisfy that interest.

Third, the District argues that it has "an interest in its residents verifying the whereabouts of their firearms" in order "to determine when firearms have been lost or stolen." District law, however, separately requires a gun owner to report the loss or theft of a weapon "immediately upon discovery" of the loss or theft, and imposes a monetary penalty for failure to do so. Id. § 7-2502.08(a)(1). In contrast, the re-registration provision imposes no penalty for failure to re-register except the revocation of one's registration certificate, but a person whose weapon has been lost or stolen no longer has need of a certificate. Although the District fails to make the argument express in its brief, the report of its Committee on the Judiciary, on which the brief relies in general, asserted that the re-registration provision may complement the loss-reporting provision because it "likely causes the owner to look for his or her gun if it hasn't been used" for a while, but that is mere speculation. The re-registration process requires only that a gun owner affirm that he still has the registered weapon; it does not require the gun owner physically to examine the weapon. See id. § 7-2502.07a. Therefore, there is no reason to believe that an owner who does not suspect his gun has been lost or stolen is likely to look for the registered weapon prior to re-registering it.

iv. Fees, D.C. Code § 7-2502.05

Heller argues "[the District may not condition exercise of a fundamental constitutional right on the creation of a burdensome registration regime and then justify imposing 'administrative costs' to pay for it." He does not argue the registration fees of $13 per firearm and $35 for fingerprinting, D.C. Mun. Regs. tit. 24, § 2320.3(c)(3), are unreasonably high.

As we already said in Heller II, "administrative ... provisions incidental to the underlying regime" — which include reasonable fees associated with registration — are lawful insofar as the underlying regime is lawful. 670 F.3d at 1249 n.*; see also Cox v. New Hampshire, 312 U.S. 569577, 61 S. Ct. 762, 85 L. Ed. 1049 (1941) (holding, in response to a First Amendment challenge to a parade licensing statute, that a government may impose a fee "to meet the expense incident to the administration of the act and to the maintenance of public order in the matter licensed"); Kwong v. Bloomberg, 723 F.3d 160, 165-69 (2d Cir. 2013) (holding constitutional a $340 fee for a license to possess a handgun in one's home). As such, reasonable fees associated with the constitutional requirements of registration and fingerprinting are also constitutional.

v. Education requirements, D.C. Code §§ 7-2502.03(a)(10), 7-2502.03(a)(13)

The District has presented substantial evidence from which it could conclude that training in the safe use of firearms promotes public safety by reducing accidents involving firearms, but has presented no evidence from which it could conclude that passing a test of knowledge about local gun laws does so. The safety training, therefore, is constitutional; the test of legal knowledge is not.

Regarding the one-hour firearms safety course, available online or at the MPD, Firearms Safety Training Course, https://dcfst.mpdconline.com/ (last visited Aug. 21, 2015), the District's experts each testified to their belief in the value of training to prevent accidents. Heller responds that "the District's experts cite no studies showing that mandatory training or testing in gun safety reduce unintentional discharges." The District, however, need not present such evidence. Rather, the Supreme Court has "permitted litigants to justify ... restrictions ... based ... on history, consensus, and simple common sense" when the three are conjoined. Cf. Lorillard Tobacco Co., 533 U.S. 525, 555, 121 S. Ct. 2404, 150 L. Ed. 2d 532 (2001) (internal quotation marks omitted). In this case, the District has offered anecdotal evidence showing the adoption of training requirements "in most every law enforcement profession that requires the carrying of a firearm" and a professional consensus in favor of safety training.3 Though its experts have characterized the training requirement as a matter of "common sense," this is not a case in which the District has asked the court to rule upon the basis of "common sense" alone.

Footnote 3 J.A. 394 (Lanier declaration) ("California, Connecticut, Hawaii, Massachusetts, and Michigan all have laws requiring some sort of training or safety certification as part of the registration process, and other jurisdictions are considering instituting similar requirements"); J.A. 407 (Vince declaration) (stating that he "do[es not know of one firearm expert or law enforcement trainer who has not strongly recommended attending and successfully passing a safety course prior to owning or using a firearm").

None of the District's experts, however, offers any reason to believe that knowledge of the District's gun laws will promote public safety. Indeed, the closest the District's experts came to addressing the subject was the statement by Chief Lanier that "in order to make registrants more clearly accountable under the law, it is important to be able to demonstrate that they were taught and aware of the requirements." This assertion, however, does not tie knowledge of the law to the District's interest in public safety.

Furthermore, even if acquiring knowledge of the law were demonstrably helpful, the imposition of a requirement that registrants prove their knowledge of the law on "a test prescribed by the Chief" is an additional burden, see D.C. Code § 7-2502.03(a)(10), the utility of which is supported by no evidence whatsoever, not even anecdotal evidence. Moreover, only a few of the 15 questions in the test actually prescribed by the Chief plausibly reflect a concern with public safety.4

Footnote 4 Compare J.A. 834 ("When handling a firearm, you should always: (A) Treat it as if it is loaded; (B) Point it in a safe direction; (C) Both A and B") with J.A. 834 ("To purchase ammunition in the District of Columbia you must have the following in your possession: (A) A U.S. Passport; (B) A valid firearm registration certificate; (C) A valid driver's license").

Because the District has offered no evidence from which the court can infer it reasonably concluded that knowledge of its gun laws, as shown by passing its test, will promote public safety, on this record the requirement must be held constitutionally invalid.

vi. One-pistol-per-month rule, D.C. Code. § 7-2502.03(e)

The District has not presented substantial evidence to support the conclusion that its prohibition on the registration of "more than one pistol per registrant during any 30-day period," D.C. Code § 7-2502.03(e), "promotes a substantial governmental interest that would be achieved less effectively absent the regulation." Heller II, 670 F.3d at 1258 (quoting Rock Against Racism, 491 U.S. at 782-83). It is therefore unconstitutional.

The District argues that the limitation could reduce gun trafficking and that it would further promote public safety by limiting the number of guns in circulation, as the District "could reasonably conclude that more guns lead to more gun theft, more gun accidents, more gun suicides, and more gun crimes."

As for the District's first argument, what little expert testimony it presented indeed indicates that limiting gun purchases in turn might limit trafficking in weapons. The experts' conclusion that limiting gun registrations would likewise reduce trafficking is, however, unsupported by the evidence. For example, Chief Lanier stated "[studies have shown that laws restricting the registration or purchase of multiple firearms in a given period are effective in disrupting illegal interstate trafficking of firearms." Yet the only study she and the District's other witnesses cited has nothing to do with "laws restricting registration," as its title attests. See Douglas S. Weil & Rebecca C. Knox, Effects of Limiting Handgun Purchases on Interstate Transfer of Firearms, 275 J. Am. Med. Ass'n 1759 (1996). One of the experts also testified from his own observation that when Virginia limited firearm purchases to one every 30 days, fewer guns bought in Virginia were used in crimes committed in the District; traffickers, he observed, instead sourced more guns through straw purchasers in Maryland. But even if this is true, the suggestion that a gun trafficker would bring fewer guns into the District because he could not register more than one per month there lacks the support of experience and of common sense. Indeed, as Heller notes, even Chief Lanier acknowledged that the efficacy of purchasing limitations in preventing trafficking may have little bearing upon the efficacy of registration limitations in doing so.

As for the District's second argument, one of its experts testified that, in his opinion, "the most effective method of limiting misuse of firearms, including homicide, suicide, and accidental injuries, is to limit the number of firearms present in a home." Accepting that as true, however, it does not justify restricting an individual's undoubted constitutional right to keep arms (plural) in his or her home, whether for self-defense or hunting or just collecting, because, taken to its logical conclusion, that reasoning would justify a total ban on firearms kept in the home. See Parker v. District of Columbia, 478 F.3d 370, 400, 375 U.S. App. D.C. 140 (D.C. Cir. 2007), aff'd sub nom. Heller I (rejecting the District's argument that a ban on one type of gun was constitutional because the "prohibition ... [did not threaten total disarmament" and noting that, if such argument were adopted "[it could similarly be contended that all firearms may be banned so long as sabers were permitted").

III. Conclusion

For the reasons set forth above, the district court's final order is AFFIRMED with respect to: the basic registration requirement as applied to long guns, D.C. Code § 7-2502.01(a); the requirement that a registrant be fingerprinted and photographed and make a personal appearance to register a firearm, D.C. Code § 7-2502.04; the requirement that an individual pay certain fees associated with the registration of a firearm, D.C. Code § 7-2502.05; and the requirement that registrants complete a firearms safety and training course, D.C. Code § 7-2502.03(a)(13). The district court's order is REVERSED with respect to the requirement that a person bring with him the firearm to be registered, D.C. Code § 7-2502.04(c); the requirement that a gun owner re-register his firearm every three years, D.C. Code § 7-2502.07a; the requirement that conditions registration of a firearm upon passing a test of knowledge of the District's firearms laws, D.C. Code § 7-2502.03(a)(10); and the prohibition on registration of "more than one pistol per registrant during any 30-day period," D.C. Code § 7-2502.03(e).

So ordered.

http://www.cadc.uscourts.gov/internet/o ... 573768.pdf

[de officiis]

Wisconsin Gun Shop Held Liable for Purchase Linked to Shooting of Police

Erik Eckholm - 10/13/15 - New York times

A jury in Milwaukee County Circuit Court on Tuesday held that a gun shop that sold a pistol to a straw purchaser was negligent and ordered it to pay $6 million to two police officers . . . .

The suit, brought against Badger Guns . . . involved a rare test before a jury of the responsibility of gun sellers for the criminal use of their products.

...

The case arose in May 2009 when a 21-year-old man bought a Taurus semiautomatic pistol ... on behalf of an 18-year-old friend. The friend . . . accompanied the buyer to the store and helped select the weapon.

Weeks later, Mr. Burton used the gun to shoot two Milwaukee police officers in the face, leaving one with brain damage and a blind eye. Mr. Burton is serving 80 years for attempted murder, and the buyer, Jacob Collins, served two years for the illegal purchase.

...

It was only the second time in the last decade that a civil lawsuit alleging negligent sales by a gun shop reached a jury.

http://www.nytimes.com/2015/10/14/us/gu ... .html?_r=0

I remember years ago when the plaintiff's bar in DC made a big push to get laws passed to hold gun manufacturers liable for shooting deaths. I don't think it got very far. Doesn't sound like these kinds of suits have gotten much traction, either.

[de officiis]

MERAMEC RIVER KILLING: STATE v. CROCKER AND MISSOURI'S FIRST FORAY INTO THE NATIONAL DEBATE ON SELF-DEFENSE

Vincent K. Heitholt - 59 St. Louis L.J. 1197 (Summer 2015)

This Note categorizes the killing [of Paul Dart by James Crocker on July 20, 2013] as another episode in a national debate over the justification of self-defense. To accomplish this, the Note first examines the general history of self-defense law and the associated castle doctrine (Part II). It then examines the recent history of Missouri's current law on the "use of force in defense of persons" (Part III). 13 Next, the Note relates Missouri's own expanded self-defense law to the more widely studied Stand Your Ground law of Florida (Part IV). 14 Finally, the Note critically reviews Missouri's expanded self-defense law (Part V) based on the dilemmas caused by the inequities in the application of such expanded protections (Subsection A), faulty statutory construction (Subsection B), and historical conflicts inherent in the justification of self-defense that are exacerbated by the statute (Subsection C). The outcome of James Crocker's trial (Part VI) is related prior to the Note's conclusion (Part VII). This analysis of Missouri's expanded castle doctrine codified in section 563.031 will reveal that the statute and its problems are not unique; it is simply another iteration of a counterproductive statute founded upon the special interests of gun owners and a misconceptualization of American values.

http://law.slu.edu/sites/default/files/ ... t_note.pdf


THE FACES OF THE SECOND AMENDMENT OUTSIDE THE HOME, TAKE TWO: HOW WE GOT HERE AND WHY IT MATTERS

Patrick Charles - 64 Clev. St. L. Rev. 373 (2016)

ABSTRACT

Since the late twentieth century, the Second Amendment has been increasingly promoted as the unfettered right to carry firearms in the public concourse. This expansive meaning, however, lacks historical support. Historical evidence reveals a disparity between the Anglo-American origins of armed carriage laws and present-day interpretations of the Second Amendment. The historical backdrop also reveals the impact pro-gun organizations have had on the expansion of armed carriage. Differences in state armed carriage laws, analyzed from both historical and regional perspectives, will one day require the Supreme Court to determine which version of history should dictate the meaning of the Second Amendment.

http://papers.ssrn.com/sol3/papers.cfm? ... id=2784548


New York State Rifle & Pistol Ass'n v. Cuomo, 804 F.3d 242 (2d Cir. N.Y. 2015)

Before the Court are two appeals challenging gun-control legislation enacted by the New York and Connecticut legislatures in the wake of the 2012 mass murders at Sandy Hook Elementary School in Newtown, Connecticut. The New York and Connecticut laws at issue prohibit the possession of certain semiautomatic "assault weapons" and large-capacity magazines. Following the entry of summary judgment in favor of defendants on the central claims in both the Western District of New York (William M. Skretny, Chief Judge) and the District of Connecticut (Alfred V. Covello, Judge), plaintiffs in both suits now press two arguments on appeal. First, they challenge the constitutionality of the statutes under the Second Amendment; and second, they challenge certain provisions of the statutes as unconstitutionally vague. Defendants in the New York action also cross-appeal the District Court's invalidation of New York's separate seven-round load limit and voiding of two statutory provisions as facially unconstitutionally vague.

We hold that the core provisions of the New York and Connecticut laws prohibiting possession of semiautomatic assault weapons and large-capacity magazines do not violate the Second Amendment, and that the challenged individual provisions are not void for vagueness. The particular provision of New York's law regulating load limits, however, does not survive the requisite scrutiny. One further specific provision—Connecticut's prohibition on the non-semiautomatic Remington 7615—unconstitutionally infringes upon the Second Amendment right. Accordingly, we AFFIRM in part the judgment of the District Court for the District of Connecticut insofar as it upheld the prohibition of semiautomatic assault weapons and large-capacity magazines, and REVERSE in part its holding with respect to the Remington. With respect to the judgment of the District Court for the Western District of New York, we REVERSE in part certain vagueness holdings, and we otherwise AFFIRM that judgment insofar as it upheld the prohibition of semiautomatic assault weapons and large-capacity magazines and invalidated the load limit.

Shew v. Malloy, No. 15-1030, SUPREME COURT OF THE UNITED STATES, 84 U.S.L.W. 3683 (U.S. June 20, 2016):

Petition for writ of certiorari to the United States Court of Appeals for the Second Circuit denied.

[de officiis]

NORTH TO THE FUTURE OF THE RIGHT TO BEAR ARMS: ANALYZING THE ALASKA FIREARMS FREEDOM ACT AND APPLYING FIREARM LOCALISM TO ALASKA

John Hill - 33 Alaska L. Rev. 125 (June 2016)

Abstract

The Second Amendment has gone from a rarely invoked constitutional provision to being one of the most hotly contested and politically charged protections of the Bill of Rights. Additionally, small government advocates have used local gun laws as a mechanism for challenging broad government regulation while conversely advocating for states’ rights, with Alaska recently joining a series of states seeking to expand local gun rights by passing state laws that nullify federal gun laws. Given Supreme Court case law and as demonstrated by recent Ninth Circuit precedent, the nullification course is almost certainly ill fated. Apart from the big government/small government proxy war being waged through local gun laws, others see the local, traditional character of the right to bear arms in a particular place as the most appropriate manner for scrutinizing regulation, given Supreme Court precedent and historic tradition.

http://alr.law.duke.edu/article/north-t ... ol33-iss1/


Withdrawing a License to Kill: Why American Law Should Jettison “Stand Your Ground” and Adopt the English Approach to Retreat

Franklin Stockdale - 39 B.C. Int'l & Comp. L. Rev. 453 (Spring 2016)

Abstract:

The justification of self-defense generally allows the use of a reasonable amount of force when a victim of an attack has a reasonable belief that the use of force is necessary in order to prevent an imminent harm. For centuries, the justification of self-defense included a duty of the victim--or defendant--to retreat before resorting to force. Today in the United States, this duty has been eliminated entirely in many jurisdictions. In England, however, the duty has not been done away with but has, instead, been incorporated into the reasonableness aspect of self-defense, which evaluates whether the amount of force used by the defendant was reasonable and whether the defendant's belief of an imminent harm was reasonable. The English version, therefore, allows the use of force even when retreat is possible but only when it can be shown that it was reasonable not to retreat. U.S. jurisdictions should undo the outright abandonment of the duty to retreat and adopt the English adjustment because it is better suited to both to gun culture in the United States and to the protection of human life.

http://lawdigitalcommons.bc.edu/cgi/vie ... ntext=iclr

[de officiis]

"Bind Me More Tightly Still": Voluntary Restraint Against Gun Suicide

Angela Selvaggio and Fredrick E. Vars - 53 Harv. J. on Legis. 671 (2016)

Individuals ought to be able to protect themselves from gun suicide by making it more difficult for them to buy guns. This Article examines the constitutionality of two robust, voluntary restraints on gun purchase. A person who selected the first option would be able to purchase a gun only after receiving judicial approval. Under the second option, the ban on purchase would be irrevocable. The Article concludes that neither option violates the Second Amendment, but that a contrary holding is possible with respect to the irrevocable purchase ban.

http://papers.ssrn.com/sol3/papers.cfm? ... d=2641139.

[de officiis]

STATE CONSTITUTIONAL LAW AS A BASIS FOR FEDERAL CONSTITUTIONAL INTERPRETATION: THE LESSONS OF THE SECOND AMENDMENT

The Honorable Bruce D. Black & Kara L. Kapp - 46 N.M.L. Rev. 240 (2016)

ABSTRACT

...

This Article is empirically valuable because it is a repository for data on a number of issues related to the Second Amendment. It catalogues the exact number of states, with citations, that have adopted the reasonable regulation standard and the number of states that have upheld concealed carry bans. It also collects data on a number of other, related, characteristics of these states, such as cataloguing the states that consider the right to bear arms fundamental and cataloguing the number of states that have found "self defense" to be one of the animating concerns under their right to bear arms. Additionally, this Article provides data for originalists on the number of states with constitutions at different points in time relevant to the historical analysis, not just at the time of the founding, and among those states, the number of states with right to bear arms provisions. Finally, it catalogues the number of states from that period with language similar to that used in the federal Second Amendment.

http://lawschool.unm.edu/nmlr/volumes/4 ... 40-279.pdf

Neighborhood Watch: Invading the Community, Evading Constitutional Limits

Adeoye Johnson - 18 U. Pa. J.L. & Soc. Change 459 (2016)

Abstract:

...
This Comment contends that the Neighborhood Watch, though often touted as a positive community-based crime prevention tactic, can actually be a source of abuse given its inherent exclusionary bias, and becomes even riskier when combined with a dangerous mix of permissive Concealed Carry and Stand Your Ground laws. . . .

Part I focuses on Neighborhood Watch as a form of community organization and an aspect of community policing. It also explores some of the underlying biases of Neighborhood Watch that can transform such groups into inherently dangerous and virtually lawless gangs. It includes current examples of Neighborhood Watch organizations, including both contexts where they have done a great deal of good work, as well as contexts where there have been problems. Part II discusses the negative implications of Neighborhood Watch groups that function as quasi-police. With vigilantism an arising problem among these groups, the lack of constitutional safeguards to protect unsuspecting victims is astounding. Part III analyzes how the added factors of Stand Your Ground and weak Concealed Carry laws can combine to create potentially violent results. Part IV, the conclusion, proposes some regulatory responses to this problem based on communities' decisions around their future favored structure of Neighborhood Watch.

http://scholarship.law.upenn.edu/jlasc/vol18/iss5/3/


Institutions and the Second Amendment

Darrell A. H. Miller - 66 Duke Law J. 69 (2016)

Abstract

District of Columbia v. Heller ruptured the one institution—the militia—that courts had used for centuries to implement the right to keep and bear arms. If the question was “what arms?,” one looked to the militia to find an answer; if the question was “whose arms?,” again, one looked to the militia. Heller loosened the fit between the militia and the right, causing a welter of conflict as to what institutions now facilitate and constrain the Second Amendment. This Article attempts to restructure the inquiry into Second Amendment rights by drawing from the literature on institutionalism and constitutional law.

Although the institutional turn in constitutional law has been important to free speech scholarship, religion clause scholarship, and separation of powers scholarship, no one has consciously applied institutionalism to the Second Amendment. This Article fills that gap. In so doing, it situates institutionalism within the leading methodological approaches of today: textualism, originalism, common law constitutionalism, popular constitutionalism, and pragmatism. As such, this Article aims to reach beyond Second Amendment scholars and speak more generally to debates about constitutional law and constitutional theory.

http://scholarship.law.duke.edu/dlj/vol66/iss1/2/