Second Amendment Update

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Several federal circuit courts have decided Second Amendment cases over the past few months. This post summarizes them. The cases and the reasoning behind them are not all completely consistent, but collectively, the courts continue to interpret the Second Amendment as permitting substantial levels of gun control.

High-capacity magazine ban upheld. Ass’n of New Jersey Rifle and Pistol Clubs, Inc. v. New Jersey, __ F.3d __, 2018 WL 6378284 (3d Cir. Dec. 5, 2018) (ruling that New Jersey’s ban on magazines that hold more than 10 rounds does not violate the Second Amendment; the court reasoned that the ban did not “severely burden” the “core” of the Second Amendment right, and so should be evaluated under intermediate scrutiny, and that the ban served the important interest of protecting citizens from mass shootings because shooters without high-capacity magazines would need to reload more often and victims could escape or fight back during reloading; the opinion notes that five other federal circuits have ruled the same way on similar bans; the dissent argues that the majority is watering down the Second Amendment)

States may require citizens to show “good cause” before granting a permit to carry outside the home. Gould v. Morgan, 907 F.3d 659 (1st Cir. 2018) (upholding a Massachusetts license-to-carry law that allows cities to require citizens to show a “good reason,” beyond a generalized desire for self-defense, before issuing a license; although the court found “no national consensus . . . concerning the right to public carriage of firearms” at the time the Constitution was adopted, it “proceed[ed] on the assumption” that the law burdened the Second Amendment; however, because the home is the “core” of the Second Amendment, laws regulating public carry are subject only to intermediate scrutiny; there is “substantial” though not “incontrovertible” evidence that the Massachusetts serves the important interests of promoting public safety and preventing crime, so it survives intermediate scrutiny)

States may not virtually prohibit open carry outside the home. Young v. Hawaii, 896 F.3d 1044 (9th Cir. 2018) (striking down a Hawaii law that, subject to a few narrow exceptions, prohibited open or concealed carry outside the home; because prior circuit precedent holds that concealed carry is not protected by the Second Amendment, the court focuses on open carry; it reasons that the use of the term “bear” in the Second Amendment “implies a right to carry firearms publicly for self-defense,” and finds that right to be at the “core” of the Second Amendment; because Hawaii’s law almost totally eviscerates that right, it is unconstitutional under any level of scrutiny; a dissenting judge would have evaluated the law under, at most, intermediate scrutiny and would have upheld it)

States may require new handgun models to meet stringent safety requirements, including ones not currently available so long as they are technologically feasible. Pena v. Lindley, 898 F.3d 969 (9th Cir. 2018) (upholding California’s Unsafe Handgun Act, which provides in part that new handgun models offered for sale must (1) have a “chamber load indicator,” (2) prevent the weapon from firing when there is no magazine in the weapon, and (3) “stamp microscopically the handgun’s make, model, and serial number onto each fired shell casing”; the court finds little burden on the Second Amendment as many functioning firearms remain available in California and therefore applies intermediate scrutiny; the burdens associated with the chamber load indicator and the prevention of firing when no magazine is inserted are justified by the state’s interest in preventing fatal accidents with guns that appear to be unloaded but have a round in the chamber; and although no manufacturer is currently complying with, or considering complying with, the microstamping requirement, they could do so at a cost of under $10 per gun, and it would serve the interest of preventing and solving gun crimes)

Concluding thoughts. First, this list isn’t comprehensive and I’m sure that there have been other significant cases recently. If you’re aware of one, please post a comment. Second, regular readers may recall a number of prior posts about Second Amendment case law. Some of those posts are here, here, here, and here. And third, it is certainly possible that the Supreme Court will wade back into the Second Amendment waters at some point. Some commentators on both sides, see here and here, have suggested that Justice Kavanugh may be more committed to an expansive interpretation of the Second Amendment than was Justice Kennedy.

One comment on “Second Amendment Update

  1. Heller is still wrong. Just sayin’….
    No question new Justice K will be far more into NRA politics than old Justice K.

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