RECENT TRENDS IN
FIREARM LEGISLATION
AND CASE LAW
Brady Center to
Prevent Gun Violence
Legal Action Project
Jonathan Lowy
Director, Legal Action Project
Legal Action Project
An initiative of the Brady Center to Prevent Gun Violence.
Brady Center to Prevent Gun Violence: A non‐profit, non‐
partisan organization working to create an America free from gun violence. Founded 1983.
Legal Action Project: The nation's only public interest law program devoted to defending reasonable gun laws and representing victims and survivors of gun violence (pro bono). Founded 1989.
Gun Violence in America
• Guns in America kill more than 30,000 people in homicides, suicides, and unintentional shootings each year.
– This is an average of 82 shooting deaths per day.
• Guns in America injure 70,000 people each year. • The firearm homicide rate in the U.S. is 19.5 times higher than rates in 22 other populous high‐income countries combined, despite similar non‐lethal crime and violence rates.
• A gun is 22 times more likely to be used in a completed or attempted suicide, criminal assault or homicide, or unintentional shooting injury or death than to be used in a self‐defense shooting. • Gun violence costs Americans about $100 billion annually.
Lawyers for a Safer America
A legal alliance of major firms and top lawyers, headed by the
Legal Action Project, working in the courts to develop
sensible Second Amendment law and reform dangerous gun
industry practices.
Goals of Legal Action Project
• Represent victims of gun violence to ensure justice for victims and their families
• Hold gun dealers and manufactures accountable for reckless and negligent business practices to force the industry to change the way it does business
• Defend strong, sensible gun violence prevention laws against legal challenges on Second Amendment and other grounds
• Challenge and defeat overbroad and/or unconstitutional laws concerning gun ownership or carrying, or the sharing of information about guns and gun sales
Preventing Gun Deaths and Injuries: Reforming Dangerous Gun Industry Practices
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Loopholes in gun laws allow the gun industry to profit by making and selling guns in dangerous ways. Civil lawsuits can encourage gun companies to act more responsibly, reducing gun deaths and injuries.
Legal Action Project brings cases on behalf of victims of gun violence to reform the gun industry by incentivizing good practices and putting a cost on dangerous and irresponsible conduct.
We have won numerous court decisions and settlements that have forced gun companies to change reckless practices that arm criminals, and encourage safety devices that prevent unintentional shootings.
Our cases expose dangerous gun industry practices and the need for stronger regulations.
Anthony Oliver (center) was 14 when he was killed by a trafficked gun. We won a settlement for his family against the dealer who sold the gun. The dealer also had his license revoked.
Firearm Industry Reform
Gun Distribution
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We bring cases to hold gun sellers accountable for reckless distribution practices that arm criminals, including sales to straw purchasers, gun traffickers and unlicensed sellers.
Our cases establish legal precedent that gun sellers may be held accountable for their misconduct.
We have won numerous court decisions and settlements that force gun sellers and manufacturers to change reckless practices that arm criminals.
Our cases have spurred ATF to shut down corrupt dealers, and lead the gun industry to recognize the need to screen for straw sales. Our clients have included police officers, children, victims of the D.C.‐area sniper shootings and other highly publicized incidents, as well as regular families whose lives were shattered by gun violence.
On behalf of Denise Johnson and other DC snipers’ victims, we established important precedent in court and won a ground‐breaking settlement that, for the first time, required a gun company to implement sales practices to prevent criminals from obtaining guns. Firearm Industry Reform
Gun Safety Technology
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Kenzo Dix was 15 when he was killed by a friend who thought a gun was unloaded. Our landmark lawsuit helped lead several manufacturers to include, and a California law to require, life‐saving safety features for handguns. Every year, over 15,000 people are shot, often fatally, because guns lack effective safety features.
Existing safety features can decrease gun deaths and injuries from unintentional shootings by children and others, but most manufacturers have refused to include this technology.
Firearms are the only consumer products exempt from federal safety standards, so the federal government cannot force them to implement changes.
The Legal Action Project has led the way to force the gun industry to include life‐saving safety devices in firearms.
– Lawsuits have compelled several manufacturers to include safety features that prevent accidental shootings and shootings by unauthorized persons.
– After a lawsuit brought by LAP and Keker & Van Nest showed the feasibility of safety devices that prevent accidental shootings, California enacted a law to require them on new guns.
Victories
The Legal Action Project has won far‐reaching legal precedents in courts across the country holding that gun companies are legally responsible for the damage their irresponsible business practices cause, including:
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Winning the first court ruling that gun makers can be liable for failing to include internal safety locks that help prevent unintentional shootings.
Winning the first court ruling that gun companies can be liable for supplying the criminal gun market.
Winning the first court ruling that the federal gun industry shield law (Protection of Lawful Commerce in Arms Act, PLCAA) is unconstitutional.
Winning the first million dollar settlement against a gun dealer for selling a gun to a trafficker who supplied a criminal.
Winning the largest settlement ever against a gun manufacturer for negligently supplying a gun used in a criminal shooting.
Winning precedent‐setting victories across the country, including in California, Florida, Indiana, Kentucky, Massachusetts, New Mexico, Ohio, Pennsylvania, Texas, Utah, Washington, West Virginia, and Wisconsin.
Filing the first municipal lawsuit against the gun industry , and winning the first court ruling that municipalities may recover costs and lost revenues from companies that contribute to gun violence in their communities.
Defending and Challenging Gun Legislation and Statutes
In addition to representing victims of gun violence and holding the gun industry accountable, the Legal Action Project also helps to defend
common‐sense gun violence prevention legislation and laws. LAP also challenges laws that threaten public safety, infringe on the rights of non‐gun owners, and/or restrict the ability of law enforcement to protect communities from gun violence.
These efforts were significantly impacted by the decisions in District of Columbia v. Heller and McDonald v. Chicago. While these decisions in some ways made our mission more difficult, they also helped to clarify the complex firearm law landscape.
Existing Federal Firearms Law
Prohibited Categories of Purchasers:
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Felony conviction
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Domestic violence
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Dangerous because of mental illness
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Dishonorable discharge
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Drug use
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Illegal citizenship status
Existing Federal Firearms Law
Restricted Weapons:
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Machine guns
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Assault weapons (expired 2004)
Existing Federal Firearms Law
Restrictions on Gun Sales
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Sales by licensed gun dealers (Federal Firearms Licensees, or FFLs) –
background checks required •
Non‐FFL sales – sales by individuals not engaged in the business of selling guns – no background checks required
Existing Federal Firearms Law
Special exemptions for guns, gun sales, and the gun industry
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Consumer Product Safety Act
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Firearm Owners Protection Act
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Protection of Lawful Commerce in Arms Act
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Tiahrt Amendment
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Fire sale loophole
District of Columbia v. Heller
Landmark case decided in 2008
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Challenge to Washington D.C.’s ban on handgun ownership
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Decided by Supreme Court in 5‐4 decision
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First Supreme Court decision declaring the Second Amendment to guarantee an individual right to own guns
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McDonald v. Chicago – 2010 case incorporating the individual Second Amendment right to the states
Heller: A Narrow Finding
Justice Scalia’s majority opinion in Heller emphasized the narrow scope of its decision:
• “[W]hatever else it leaves to future evaluation, it surely elevates above all other interests the right of law‐abiding, responsible citizens to use arms in defense of hearth and home.” • “In sum, we hold that the District's ban on handgun possession in
the home violates the Second Amendment, as does its prohibition
against rendering any lawful firearm in the home operable for the
purpose of immediate self‐defense. Assuming that Heller is not
disqualified from the exercise of Second Amendment rights, the
District must permit him to register his handgun and must issue him
a license to carry it in the home.”
A Limited Effect on Other Gun Laws
Justice Scalia’s Opinion:
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“Like most rights, the right secured by the Second Amendment is not unlimited.”
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“Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”
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“We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.”
Questions Left Unanswered in Heller
• Incorporation
• Does the Second Amendment apply to state and local laws?
• Standard of review
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Strict scrutiny?
Intermediate scrutiny?
Reasonable regulation?
“Sliding” standard?
Incorporation Answered in McDonald
• Heller only applied to the federal government and DC as a federal enclave. McDonald incorporated the Second Amendment to apply to the states, meaning that state and local laws, not just federal gun laws, can be challenged.
• The McDonald court also reaffirmed the important language in Heller assuring the validity of broad categories of gun laws, including laws regulating the sale of guns, laws banning guns in sensitive places, and laws banning concealed weapons, among others, and added: “We repeat those assurances here.”
• “It is important to keep in mind that Heller. . . recognized that the right to keep and bear arms is not ‘a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.’”
Response to Heller by gun lobby and gun criminals
• Beginning hours after the Supreme Court announced the Heller
decision, lawyers for the gun lobby and criminals convicted of gun crimes flocked to courts throughout the country attempting to vastly expand its narrow holding
• There have been hundreds of post‐Heller challenges to gun laws and gun prosecutions on Second Amendment grounds. • Gun convictions have been challenged for:
• Felons in possession
• Domestic violence abusers in possession
• Controlled substance users in possession
• Machine gun possession
Response to McDonald by gun lobby
• The gun lobby has challenged numerous state laws restricting the sale and use of guns, including:
• Georgia’s prohibition on guns in church
• Maryland’s handgun permitting process
• North Carolina’s prohibition on gun possession during declared states of emergency
• San Diego’s handgun permit process
• Texas’ prohibition on handgun possession for 18‐year‐olds
• Westchester County, NY’s handgun permit process
Courts have rejected post‐Heller challenges
• Since Heller, courts have faced hundreds of challenges to gun laws and prosecutions. No challenge based on Second Amendment grounds has ultimately succeeded.
• Courts have interpreted and applied Heller in different ways to uphold important gun laws.
• Some gun laws have survived Heller challenges based on the list of “presumptively lawful” restrictions from the majority opinion.
• For example, several Circuits have affirmed convictions for felons in possession based on the Court’s language. Courts have rejected post‐Heller challenges
• Other gun laws have withstood Heller challenges without being on the “presumptively lawful” list. Multiple Circuits have:
• Affirmed convictions for defendants who used controlled substances or possessed firearms during drug trafficking.
• Upheld convictions for domestic violence offenders in possession and those with protective orders against them.
• Upheld convictions for those in possession of machine guns, unregistered firearms, or firearms with obliterated serial numbers. Example: U.S. v. Skoien
• Challenge to the federal ban on gun possession by misdemeanor domestic violence abusers.
• Full panel of the 7th Circuit Court of Appeals found the ban not in violation of the Second Amendment.
• Court stated that “persons convicted of domestic violence are likely to offend again, so that keeping the most lethal weapon out of their hands is vital to the safety of their relatives.”
The Future of the Second Amendment and Gun Laws
• The gun lobby and convicted criminals continue to seek to expand the right recognized in Heller and McDonald, arguing for a constitutional right to:
– carry guns in public – possess unlimited guns
– possess military‐style assault weapons
– possess by persons who are untrained
• The Brady Center Legal Action Project continues to file briefs and bring challenges to prevent these efforts from succeeding, and prevent the violence they would help to cause.
Challenged Law: Nelson, Georgia
• Nelson: small town of ~1300 in northern Georgia.
• City Council passes an ordinance on April 1, 2013 (not an April Fools’ joke) requiring every Head of Household within the City limits to maintain a firearm and ammunition.
Exceptions included for those who:
• “suffer from a physical or mental disability” • are “paupers” • “conscientiously oppose maintaining firearms as a result of beliefs or religious doctrine” • have been “convicted of a felony.”
Issues Raised
• Complaint filed by Brady Center on behalf of an organization member who is a Nelson resident
• Alleges that the ordinance violates Constitutional rights (1st, 2nd, 14th Amendments)
First Amendment: Compelled speech, objectors must involuntarily and publicly declare they fall in one of the exempt categories
Second Amendment: Violates the right to self‐defense; keeping ones home safe by not
bringing in a gun
Challenged Law: “Docs v. Glocks” (FL)
• Florida law passed in 2011 (backed by the NRA) preventing doctors from asking patients about gun ownership, or risk losing license
• Challenged by numerous medical organizations on 1st and 14th
Amendment grounds, represented by Legal Action Project and co‐counsel
• Permanently blocked by federal District Court in September 2011
• Appealed to 11th
Circuit in July 2012, oral argument scheduled in Miami for July 2013
Defending Post‐Newtown Gun Laws
Various states have passed new gun violence prevention legislation since the horrific events in Newtown, CT in December 2012, including:
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Connecticut
New York
Colorado
Maryland
Gun rights groups in each state are challenging the new laws, which include assault weapon and high capacity magazine bans, on Second Amendment grounds.
Legal Action Project is assisting state authorities in defending these new common‐sense provisions. Proposed New Federal Firearms Law
• Background checks required in most gun sales (closing gun show loophole) – Manchin‐Toomey proposal (failed in Senate)
• New gun trafficking penalties
• Assault weapons ban renewal
• Ban on high‐capacity magazines
• Expand prohibited purchasers
• Terrorist watch list
• Other types of criminals
Proposed New Federal Firearms Law
• Equal Access to Justice for Victims of Gun Violence Act
• H.R. 332
• Sponsored by Rep. Adam Schiff (D‐CA) with 22 cosponsors
• Would undo parts of PLCAA
www.bradycenter.org/legalaction