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June 30, 2010

Effective review of state gun laws likely to be challenged after McDonald

The AP has this effective new piece, headlined "Gun law challenges likely after high court ruling," which reviews the state gun restrictions that might soon be subject to post-McDonald litigation. Here is the article's list:

Among other laws already facing lawsuits or expected to be challenged:

  • Age limits that bar people younger than 21 from buying or owning guns
  • Lockbox and trigger-lock requirements to keep guns away from children
  • One-gun-a-month purchase limits in California, Maryland, New Jersey and Virginia
  • Georgia's prohibition on carrying guns into churches
  • Bans on guns in bars
  • California's outlawing of certain handguns
  • Assault weapons and ammunition bans
  • Federal and state prohibitions aimed at keeping domestic violence offenders from having guns.

I would be interested in hearing reader views on which of these laws seem most likely and least likely to survive Second Amendment challenges.

June 30, 2010 at 10:29 AM | Permalink


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I would include in the list federal prohibitions on firearm possession by non-immigrant aliens, 922(g)(5), and individuals under a restaining order, 922(g)(8).

Posted by: DEJ | Jun 30, 2010 11:35:04 AM

Although McDonald does little to change the 2d Amend's impact on federal laws (as Heller did that heavy lifting), I generally do not believe courts will invalidate state and federal prohibitions against the possession of firearms by felons. Although it may be unprincipled and slightly dishonest, see US v. McCane, 573 F.3d at 1048-49 (Tymkovich, J., concurring), I'm not going to be holding my breath for statutes similar to 922(g)(1) to be declared facially unconstitutional.

However, as I alluded to above, I do believe some categorical prohibitions on firearm possession by a general group of individuals may have a chance of being successfully challenged. The likelihood will turn on the standard of review and the facts of the case (i.e. raising an as-applied challenge).

Posted by: DEJ | Jun 30, 2010 11:50:22 AM

I think the restraining order provision is ripe for review, at least to a certain extent. I litigated a case in the Ninth Circuit and argued that the 922(g)(8) language, which applies to DV restraining orders that were issued after "actual notice" and an "opportunity to participate," must be limited to orders issued after a full-fledged due process hearing. US v Young, 458 F.3d 998 (CTA9 2006). The 9th Cir. skipped over the due process analysis and ruled that the statute is met so long as the order is issued at a hearing at which the defendant is present and able to speak. The specific circumstances were that my client had been issued a restraining order at a criminal arraignment -- he was told that a restraining order was being issued and asked if he understood; he said "yes" and the 9th Cir. said that was enough. With Heller & McDonald, it seems like this analysis should be revisited.

Posted by: RP | Jun 30, 2010 12:06:59 PM

i believe that courts are likely to uphold more stringent gun regulations by states as opposed to the federal government based on the state's possession of general police powers which provide broad powers to enact laws promoting public safety.

"Age limits that bar people younger than 21 from buying or owning guns"

it is hard to see those regulations/laws being overturned - i also do not forsee there being any problems with a state law requiring adult supervision for use of a firearm by a minor such as for hunting or gun safety classes. states are likely to retain wide authority to regulate firearm useage by children.

"Lockbox and trigger-lock requirements to keep guns away from children "

this might get overturned although again i suspect that states will be given wide latitute to control firearm usage and access to children. it may well be that while a law requiring lockbox and trigger locks for all guns will be overturned, states will be allowed to require their use in locations where children are present

"One-gun-a-month purchase limits in California, Maryland, New Jersey and Virginia"

think this one will remain - there is no restriction for people to own or possess firearms through those laws and there is nothing that infringes on the right to bear arms - people can still own multiple firearms and indeed can still purchase 12 guns a year as well as ammunition. i believe that those laws also contain exceptions for sales at gun shows and private sales of antique firearms for the collector's market. believe they are very likely to survive

"Georgia's prohibition on carrying guns into churches"

it gets overturned unless there the government can show a history of churches where people shoot themselves to prove their faith during religious services which would make this law like laws banning snake handling.

"Bans on guns in bars"

nothing in the second amendment will give the right for someone to carry a firearm onto another person's private property and even if the laws are overturned, most bars will ban firearms from their premises - if for no other reason to avoid the potential legal liability when (not if) a drunken argument leads to a shooting. i suspect that the bans will be upheld though - everyone knows that alcohol and guns are a deadly combination.

"California's outlawing of certain handguns"

i think as long as some firearms are allowed, the law will be upheld. the language of the second amendment speaks of "the the right to bare arms" and "a well regulated militia" must mean something otherwise it wouldn't be in the constitution - since militias have historically been regulated on the state level, it would seem that the second amendment would allow for regulation by states on firearm possession - therefore, state regulations short of a total ban of firearm ownership or a class of firearms will be upheld.

"Assault weapons and ammunition bans"

this is where it becomes interesting, because arguably these are total bans of a type of firearm. will the state police power and power to regulate the militia permit the state to determine that private ownership of certain classes of firearms are banned? might get overturned, might get narrowly upheld. most difficult area to predict

"Federal and state prohibitions aimed at keeping domestic violence offenders from having guns"

state laws will be upheld - even the strongest proponents of the second amendment believe it is okay and desireable to keep guns out of the hands of violent people. no way a court overturns state laws banning people convicted of violent crimes from having (or under a domestic violence protection order) even if classified as misdemeanors. its possible that the federal ban could be overturned because the federal government lacks the general police powers and there probably isn't adequate justification under the commerce clause. but no way will any court ever hold that a state lacks the power to ban a person convicted of violent crimes from firearm ownership.

in short, i don't think much changes - total bans are out. regulatory rules remain and are upheld unless they are silly and completely devoid of any public safety justification. the situation ultimately may be like zoning and other real property regulation - states are likely to receive wide latitute under the police powers to promote health and safety to restrict, but not eliminate, constitutional rights

Posted by: virginia | Jun 30, 2010 12:42:58 PM

Trigger lock/lock box requirements are almost certainly unconstitutional, at least as it applies to the home. I didn't see anything in Heller or McDonald that turned on the presence of children in the home. It will be interesting to see just how handy the firearm has to be under the Second Amendment, and how it will be analyzed and proven. You might end up with logical anomalies: criminal negligence for keeping household clenser in reach of children, but constitutional protection for keeping a loaded firearm in the same spot.

Posted by: DM | Jun 30, 2010 2:19:31 PM

I haven't read McDonald yet, so I must be missing something big. Please enlighten me; how does a trigger lock requirement infringe on one's constitutional right to keep firearms? I don't understand how that burdens your right to bear arms in any way, any more than noise ordinances burden your right to free expression.

Posted by: srs | Jun 30, 2010 4:15:50 PM

I don't think this list approaches the actual; interesting questions, or the ones that may turn out in litigants' favor. In that I suspect the AP list was chosen for political reasons.

Things I think have a good chance of going by the wayside, discretionary licensing schemes such as those in NY and CA. Also there will be important litigation over "bear", so far Heller and McDonald have been about "keep".

Unfortunately I don't trust our current SCOTUS lineup to give "bear" any enforceable meaning whatsoever.

Posted by: Soronel Haetir | Jun 30, 2010 4:32:46 PM

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