Analysis: state gun regulations and McDonald

Todays opinion in McDonald v. City of Chicago means that for the first time, state and local governments gun regulations must comport with the Second Amendments protection of the right to keep and bear Arms. Although many state constitutions have a gun rights provision, McDonald has the potential to radically reshape non-federal firearms legislation.  In this post, we discuss McDonalds likely effect on some of the most significant pieces of non-federal firearms legislation. The description of existing firearms laws is drawn primarily from a 2008 report published by the Legal Community Against Violence (LCAV), which has a summary of firearms laws on its website.

While most state constitutions protect a right to keep and bear arms, state courts almost always deem state gun regulations reasonable and uphold them on that basis. In McDonald, the plurality stressed that its holding will not end experimentation with reasonable firearms regulations. But it left undisturbed the Courts strong suggestion in District of Columbia v. Heller (2008), the D.C. guns case, that a more demanding test is appropriate.

In McDonald, as in Heller, however, the Court declined to articulate the standard under which firearms regulations should be evaluated. When discussing whether the Second Amendment applies to the States, the plurality explained that the right guaranteed by the Amendment is fundamental from an American perspective. That statement does not necessitate use of the Courts most restrictive test, strict scrutiny. As Justice Stevens lamented, todays decision  . . . could mire the federal courts in fine-grained determinations about which state and local regulations comport with the Heller right . . . under a standard of review we have not even established.

Since Heller, some courts grappling with which standard to apply to laws that affect the Second Amendment have settled on intermediate scrutiny. Rather than simply asking whether a firearms law is reasonable, courts using that test ask whether a law is substantially related to an important government interest.  This standard, perhaps more so than strict scrutiny, is consistent with the pluralitys reiteration in McDonald that the Second Amendment does not interfere with certain longstanding regulatory measures, such as prohibitions on bringing guns into schools.

But today, the Court declined to adopt this or any other standard for review. In the face of this uncertainty, lower courts are exceptionally likely to latch onto three, relatively concrete pieces of Second Amendment jurisprudence.

First, the Second Amendment does not afford an unlimited right to weapons ownership. The Court explained in Heller that the Amendments protection of the right to keep and carry arms is limited to weapons in common use. [D]angerous and unusual weapons M-16 rifles and the likemay be banned.  While the Court did not explain how to evaluate a regulation that restricts access to a weapon protected by the Second Amendment, if a weapon is not protected, a court need not select a level of scrutiny under which to evaluate it.

Second, courts will rely heavily on and extrapolate from the presumptively lawful regulations described by the Court in Heller. Each of those presumptively permissible regulations is described below.

Third and finally, in the absence of more direct guidance from the Supreme Court, lower courts will likely view as persuasive the decisions of courts that have already applied Heller. So while the Court did not endorse a standard of review, its failure to specify a standard reserves influence for lower courts that have directly addressed the standard-of-review issue.

Assault weapons bans

LCAV describes assault weapons as a class of semi-automatic firearms designed with military features to allow rapid and accurate spray firing. At least some form of assault weapon is banned in California, Connecticut, Hawaii, Maryland, Massachusetts, New Jersey, and New York. Minnesota and Virginia regulate, but do not ban, assault weapons.

State courts have upheld bans on assault weapons, generally holding that the gun rights protected by state constitutions were adequately protected by the availability of alternative firearms. The Courts opinion in Heller, however, rejected the Districts argument that handguns may be banned under the Second Amendment so long as the possession of other firearms . . . is allowed.

There are nonetheless two reasons why narrowly-defined bans on assault weapons are likely to be deemed consistent with the Second Amendment. First, those weapons may be deemed dangerous and unusual, and thus outside the Amendments protective scope. Second, when the Court rejected the Districts argument in Heller, it stressed that the American people have considered the handgun to be the quintessential self-defense weapon language cited by the Court in McDonald. If true, that statement is a reasonable response to an argument that other weapons are legal: quintessential weapons are, after all, atypically difficult to replace. The argument has less salience when adequate substitute firearms are readily available.

Handgun bans

In Heller, the Court rejected the Districts functionally complete ban on handgun possession in the home. In McDonald, the Court directed a lower court to apply Hellers protections to the non-federal laws at issue, and required that every state and local law comply with those protections.

No state prohibits all handguns. But some ban particular types of handguns, such as so-called junk guns, which LCAV describes as cheap, easily concealed, and more likely to misfire or malfunction than other firearms.

These handgun bans may survive scrutiny at least less-than-strict scrutiny even if the Second Amendment inhibits their regulation. But these bans highlight a line-drawing problem within the Courts Second Amendment jurisprudence, and provide a potential source of future disagreement amongst the lower courts.

In Heller, the Court held that the Second Amendment only protects weapons typically possessed by law-abiding citizens for lawful purposes. To determine whether a type of weapon is typically possessed, a court must first select the level of generality at which it will characterize a weapon. If a junk gun is characterized only as a handgun, it is a type of weapon to which the protections of the Second Amendment extend. Second Amendment advocates will press that characterization because such prohibitions have the paternalistic feel of measures intended to protect owners rather than the public, and perhaps to limit firearms possession.  But if it can be defined more narrowly, then its ownership for lawful purposes may be far less typical, and its protected status far more dubious. Gun control advocates will argue this view, in part because as LCAV notes, such guns are disproportionately associated with criminal misuse. Because there is no correct level of generality, courts may disagree about whether the Constitution inhibits bans on particular types of handguns.

Because courts will rely heavily on arguments that a type of weapon is not protected by the Second Amendment, this seemingly abstract dilemma may soon pose concrete difficulties for state courts and legislatures.

Child protection (including trigger locks and storage requirements)

In a brief submitted during the McDonald litigation, the City of Chicago and the Village of Oak Park expressed concern that incorporation would prompt a challenge to and possible defeat of regulations that protect children. They noted that one survey shows 27 States impose criminal or civil liability for improperly storing firearms or allowing children to access or use them, and that [s]ome require firearms to be secured with a trigger lock, placed in a locked container, or stored in a secure, inaccessible location. Moreover, they worried, such regulations would be jeopardized by applying Heller to the states, because in Heller, the Court struck down the Districts prohibition against rendering any lawful firearm in the home operable for the purposes of immediate self-defense.

McDonalds application of Heller to the states will not necessarily jeopardize these sorts of regulations. Heller addressed a prohibition on rendering a firearm operable in the home. A complete ban on operability is quite different from an impediment to operability. The Court stated quite plainly in Heller that its opinion did not suggest the invalidity of laws regulating the storage of firearms to prevent accidents. Interpreting the word immediate in immediate self-defense to bar every measure that sought to prevent accidents would ignore the Courts insistence that the right to bear arms is not unlimited. Again, such a result is not guaranteed if courts adopt a very stringent standard for review. But we believe most courts are unlikely to strike down such laws unless compelled to do so by the Court, particularly given that four members of the Court are committed to not recognizing any such right at all.

Barring certain individuals from gun ownership

Under the laws of almost all states, certain persons are ineligible to purchase or possess firearms. In Heller, the Court deemed presumptively lawful the “longstanding prohibitions on the possession of firearms by felons and the mentally ill.” Courts have relied on that passage in upholding the convictions of felons charged under federal law with illegally possessing firearms. As the Court appears to have intended, these types of restrictions are unlikely to be struck down.

But some similar restrictions are of much more recent origin. A federal law passed in 1996, 18 U.S.C. § 922(g)(9), prohibits the possession of firearms by any person who has been convicted in any court of a misdemeanor crime of domestic violence. Since Heller, courts have disagreed about whether that prohibition is presumptively lawful. Sentencing Law and Policys Douglas Berman and Eugene Volokh of the Volokh Conspiracy have expressed skepticism about the reasoning employed by the Eleventh Circuit in rejecting a challenge to the law in United States v. White.

Many state-law prohibitions go beyond even this federal law. In California, Colorado, New Jersey, New York, Texas, and Virginia, for example, courts may prohibit gun possession by persons merely charged with a misdemeanor crime of domestic violence. LCAV notes that [t]welve states require . . . law enforcement to remove at least some firearms at the scene of a domestic violence incident, and that six authorize, but do not require such removals. McDonalds requirement that these laws be consistent with the Second Amendment does not necessarily entail their rejection. But in the near future, at least some state courts will almost certainly strike down laws, created to protect victims of domestic violence, that arguably offend the right to keep and bear arms.

Indeed, the Courts failure to articulate a standard of review is likely to have particularly strong consequences when courts evaluate these types of regulations. First, the weapons affected, like handguns, will often qualify for the Second Amendments protection. Second, though the regulations are similar to some presumptively lawful regulations, an analogy between these laws and disarming convicted felons is somewhat attenuated. Third, courts that have addressed this sort of question have not done so uniformly; even merely persuasive authority cuts in different directions. In McDonald, the court left this area of the law in turmoil.

Registration requirements

Todays McDonald decision involved a Chicago law requiring would-be firearm owners to comply with the Citys extremely onerous firearm registration regime. The Court today held that Chicagos law must comport with the Second Amendment, but left to a lower court the question of whether the particular law at issue is unconstitutional.

LCAV reports that [s]even states and the District of Columbia require registration of some or all firearms. It further notes that [a]though registration laws vary, they typically require gun owners to record the ownership of their firearms with a designated law enforcement agency.

Most extant state registration regimes are likely to be upheld. California, Connecticut, Maryland, and New Jersey have banned assault weapons[,] but allow continued possession of such weapons if they were lawfully owned on a specified date and are registered. Louisiana similarly imposes a limited registration requirement. Courts will uphold these laws insofar as they affect dangerous and unusual weapons not protected by the Second Amendment.

But although the Second Amendment does not shield every weapon from regulation, laws requiring the registration of all firearms assuredly affect weapons within the Amendments protective ambit. A registration requirement applicable to all firearms like Hawaiis must therefore withstand a courts scrutiny, whatever that may entail.

In a decision that courts looking for guidance may find persuasive, a federal judge in the District of Columbia has already applied intermediate scrutiny to one set of such requirements. SCOTUSblogs Lyle Denniston described the courts opinion, in which the judge upheld the entirety of the Districts extensive registration regime. Lyle explained that a person seeking to register a weapon in the District must:

submit fingerprints and two photographs, show knowledge of local gun laws, have visual capacity sufficient to get a vehicle drivers license, prove completion of a gun-use or safety course, show how the gun will be used and where it will be kept, and notify District police if the gun is stolen, transferred, sold, lost or destroyed.

That opinion is no guarantee that other courts will reach similar conclusions. But its breadth strongly suggests that the more limited registration requirements elsewhere imposed on protected weapons like handguns have a good chance of being upheld.

Licensing requirements (including concealed weapons)

LCAV reports that [f]our states require licenses for all firearm purchasers or owners, while seven states license all handgun purchasers or owners. The organization explains that two types of licensing regimes predominate. The first, a permit to purchase scheme, requires would-be gun owners to obtain a permit or license prior to purchas[ing] certain weapons. The other regime requires a license as a condition of gun ownership. In Massachusetts, for example, firearm possession requires either a Firearm Identification (FID) card or a Class A or B license, all of which entail an application process. That process includes a background check, safety training, and gives the state forty days to make a decision. Each card or license is valid only for six years, and costs one hundred dollars to obtain.  Some jurisdictions, including Massachusetts, employ both approaches.

In Heller, the Court explicitly declined to address the District of Columbias licensing scheme. In so doing, it left open the question of whether and which licensing requirements are acceptable.

Licensing requirements targeted at guns outside the purview of the Second Amendment will by definition be upheld. Whether other requirements survive court scrutiny depends, in part, on the impediment that such requirements pose to protected gun ownership.

A variety of factors may suggest that a licensing requirement constitutes a constitutional or instead impermissible limitation on the right to keep and bear arms.  Cost, delay, and discretion will relate inversely to the probability that a court will uphold a licensing regime.

Courts are, however, very likely to uniformly uphold licenses that restrict the carrying of concealed weapons. The Court stressed in Heller that the Second Amendment does not afford an unlimited right to keep and bear arms. Providing an example, it noted that the majority of 19^th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful . . . . That line will heavily influence state courts nationwide.

Conclusion

McDonalds extension of the Second Amendment to state and local gun regulation will undoubtedly prompt a flood of firearm-related litigation especially because the Court did not specify a standard of review. The above list of potential controversies is not exhaustive. In the brief period of time since Heller, litigants have already challenged a ban on armor-piercing ammunition and large-capacity magazines, to provide only a few examples.

Some challenges will be quickly dismissed. Courts will likely uphold regulations that the Court deemed presumptively lawful, including laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, and some laws imposing conditions and qualifications on the commercial sale of arms.

But McDonald is unquestionably a landmark case. Its impact will be felt in every state, and especially in cities that more tightly restrict firearms than the states in which they are contained. By affecting the scope of permissible limitations on firearm possession, the decision may also redefine the types of searches and seizures that states may reasonably conduct.

Today was the last day this Term that the Court will hand down opinions. And while the Courts decision in McDonald comes at the end of Justice Stevens career, it almost certainly marks the beginning of as he put it an avalanche of litigation to determine what exactly the decision entails.