New Case: Powell v. State of Illinois

A federal district court decision from September 30 raises some novel legal issues regarding firearm policy (the case is captioned Powell v. State of Illinois but is still at the pre-trial stage). On September 30, 2019, U.S. District Judge Joan Gotschall issued a breathtaking 34-page opinion denying in part the defendants’ motion to dismiss; it allows the case to move forward to discovery.  (See news coverage of the opinion here and here). The plaintiffs, representing a class of Chicago African American school children, link inexcusably high levels of gun violence with childhood learning disabilities and a lack of reasonable accommodations. The statutory basis for the claim is the Americans with Disabilities Act (ADA), along with the Illinois Civil Rights Act; the children-class representatives suffer post-traumatic stress disorder (PTSD) and other learning disabilities due to daily exposure to gun violence, including witnessing the shooting deaths of immediate family members. The plaintiffs are seeking injunctive relief in the form of state gun regulations, primarily directed at gun dealers, “which they contend would appreciably stem the tide of gun violence in Chicago.” (For helpful reporting on the complaint from when it was filed, see here and here).  It is worth reiterating that the September 30 decision, though significant, is merely a ruling on a motion to dismiss – a trial on the merits is still in the future.  Most cases settle before trial, so this case could end in a pre-trial settlement sometime in the next few months, without generating a verdict on the merits or subsequent appellate decisions.

The case focuses on Chicago, but it highlights a pervasive problem for urban communities nationwide – regular exposure to neighborhood gun violence is a significant factor in educational inequality, because it interferes with learning, educational achievement, and school operations.  The idea behind the case is that concentration of gun violence in neighborhoods beset with poverty is the foreseeable and inevitable consequence of an overly abundant supply of easily accessible firearms. Gun violence and homicides have reached epidemic levels in recent years among minority teenagers in the United States, and the constant disruption, trauma, and fear that go along with such day-to-day violence significantly affect the educational and psychological development of urban youth, and thus their eventual educational and career achievements.  The plaintiffs’ complaint and brief draw heavily from a growing body of academic research from sociologists, psychologists, educational theorists, and public health researchers to support these points.  The plaintiffs in this case argue that comprehensive community solutions to reduce gun violence are inseparable from policies promoting educational equality, as decreased gun violence boosts educational achievement and helps the school environment.

The judge’s opinion opens with a simple, sad observation: “It is common knowledge that, as the plaintiffs in this proposed class action allege, gun violence has ravaged the City of Chicago for decades and that the violence is concentrated in predominately African-American neighborhoods.”  Other courts have acknowledged this as well.  Chicago has one of the highest rates of gun homicides in the country, and twenty percent of the homicide victims in Chicago are teenagers or younger.  The racial disparity among victims is striking: eighty percent of the murder victims in Chicago are African-American, even though African-Americans are only about one-third of Chicago’s total population; African-American men from age 15 to 34 are only 4% of the city’s population, but they comprise half of the homicide victims.  The national homicide rate is around 5 per 100,000, but the African American neighborhoods in Chicago have rates from 87-180 per 100,000, while the predominately white neighborhoods have homicides very rarely, and in some years, none. Chicago is awash in guns, a large share of which come from seven identifiable gun dealers, either through loosely-regulated but legal sales, or through thefts from these stores (hundreds of guns per year that enter the black market).

This case is interesting from a legal perspective for several reasons.  First, the plaintiffs are claiming a statutory (not constitutional) right to be free from daily gun violence, under both federal (the A.D.A.) and state law.  Second, the case does not directly implicate Second Amendment rights – the plaintiffs are not suing gun owners, dealers, or manufacturers, but instead state officials who are (allegedly) not implementing the firearm regulatory regime mandated in Illinois’ state statutes.  Of course, the injunctive relief that the plaintiffs are seeking are a combination of regulatory and enforcement actions by state law enforcement officials that would raise some Second Amendment issues.  Indeed, the very statute that the plaintiffs want implemented is currently the subject of separate litigation by gun rights groups, claiming that the Illinois FOID law violates (among other things) the Second Amendment.  So, Second Amendment advocates will watch this case closely as it moves forward; some groups, such as the NRA-ILA, have already decried the September 30 opinion on their website.  Another noteworthy feature of the case is that the plaintiffs are not seeking monetary damages, except potential attorneys’ fees if they prevail on their injunctive relief claims.

A third reason this case is interesting, from a legal standpoint, is that the plaintiffs are seeking, at least primarily, the promulgation of regulations, rather than enforcement actions.  In the field of administrative law, lawsuits to compel government agencies to undertake specific enforcement actions are notoriously difficult to win, both on the merits and on standing grounds.  After Massachusetts v. EPA, however, a distinction has emerged between actions to compel agency enforcement, versus actions to compel agencies to promulgate rules.  The later, under Massachusetts, is a stronger claim, especially for purposes of plaintiffs establishing standing, but potentially also on the merits, if there is a clear enough statutory mandate for an agency to regulate.  Another similarity to Massachusetts v. EPA is the complex issue of standing to sue, which was the focus of the defendants’ motion to dismiss and a large section of the opinion – as in Massachusetts, a case about the EPA’s refusal to regulate carbon dioxide emissions and the resulting effects of rising sea levels – the plaintiffs can articulate concrete and particularized injury-in-fact (medically diagnosed post-traumatic stress disorder and its direct effects on school behavior and learning), but the alleged injury is the combined effect of innumerable independent actors and factors, which in the aggregate are an indirect but foreseeable result of a government agency’s refusal (or failure) to regulate the activities of these actors.

From a more abstract policy or political science standpoint, the opinion (and even more so the original complaint) highlights the tradeoffs with guaranteed rights, such as Second Amendment rights – the idea that protection of any right means a restraint on another individual, group, or entity.  Or, from the other angle, protection of the rights of disabled children in Chicago (the plaintiff class in Powell) would seemingly require injunctive relief that would entail restraints on the gun trade that many perceive as an infringement on the right to bear arms.  If the right to bear arms includes an individual right to buy and keep firearms for self-defense, an implication of this right might be a readily accessible retail market for acquiring guns.  The market infrastructure necessary to make guns widely available for purchase, in turn, means there will inevitably be a certain amount of straw purchasers, dealers who knowingly violate gun laws, gun thefts, a secondary market for used guns that blurs into the black market, and individuals who become legally ineligible for gun ownership (statutorily “prohibited persons”) after they are already in possession of some firearms. These are the types of spillover effects that the plaintiffs outline in their complaint, and that the relevant state statutes (Illinois’ FOID Act) were supposed to address, at least in part.  It will be interesting to see how the case progresses, and if the case settles or results in a favorable verdict for the plaintiffs, if the state is in fact able to implement the changes the plaintiffs seek.

This Week’s SCOTUS Action on Pending Second Amendment Petitions

As I highlighted at the beginning of the week, heading into the new Term, the Supreme Court had (by my count) 14 outstanding petitions for certiorari raising Second Amendment or firearms-law related questions. Many of these cases had been considered at conferences last Term and, we suspect, are being held pending the outcome in NYSRPA. Coming out of the Long Conference, the Court did, however, dispose of two of the cases it recently considered:

Armament Services v. Barr 3d Cir. 19-June-19 What constitutes a “willful” violation of the Gun Control Act for revocation of a Federal Firearm License distributed 1-Oct-19 conference & cert denied 7-Oct-19
Miller v. Ferguson 9th Cir. 23-July-19 Ban on firearm possession (as sufficient restraint to invoke habeas) distributed 1-Oct-19 conference & cert denied 7-Oct-19

These were probably the two least likely to be affected by any outcome in NYSRPA, so it’s perhaps not surprising that the Court acted on them now.

The Court also denied the City’s Suggestion of Mootness in NYSRPA. But it also said that “[t]he question of mootness will be subject to further consideration at oral argument, and the parties should be prepared to discuss it.” There’s no doubt, then, that we’ll soon have oral argument in a case raising a Second Amendment challenge for the first time since March 2, 2010.

 

 

One Gun Policy Idea We Can Agree On: Magazine Regulation

Gun policy change in America seems to have come to a fork in the road: on the one hand, the forces favoring stronger gun laws have become more numerous, more vocal, and arguably more successful. On the other hand, the infusion of new, very conservative judicial appointments coming from the Trump administration who seem to embrace unadorned fealty to a broad reading of the Second Amendment (including two new conservative Supreme Court justices) suggests that the courts are poised to view gun laws with greater skepticism.

Scholarship Highlight: Curry on the Shifting Core of the Second Amendment

Ryan Curry has published a new paper in the latest issue of the Tulsa Law Review, “An Evolving Right: The Shifting Core of the Second Amendment and Its Effect on Public-Carry.” He catalogues the various ways courts have characterized the “core” of the Second Amendment right and argues that the Supreme Court needs to step in and clarify. From the Introduction:

. . . Heller defined the core purpose of the Second Amendment as the right to use handguns for self-defense. Absent from this definition is the answer to a crucial question, the question on which this Note will focus: is the core limited to certain locations? Stated more directly, is it limited to the home? As the recent cases of Wrenn v. District of Columbia and Young v. Hawaii illustrate, by expanding or contracting the Second Amendment’s core, courts give themselves significant leeway to determine whether a statute that limits firearm possession outside the home is constitutional. . . .

Part I of this Note explores the background of the Second Amendment by highlighting the role of the militia during the American Revolution. This section illustrates the public admiration of the militia during the colonial period as well as the shared public fear of the militia’s antithesis: a standing military. As discussed in other writings, there is an argument that the founders did not envision the Second Amendment as a protection of individual firearm rights unrelated to state militias but, rather, intended it to provide a balance against the federal military by granting citizens the right to keep and bear arms in the limited context of militia service.

Part II analyzes the Supreme Court’s decisions in Heller and McDonald. While these decisions relied heavily on a historical interpretation of the Second Amendment, in both instances, the Court expanded the reach of the widely-believed intent of the framers and held that the Second Amendment protects an individual right to possess handguns for self-defense even in the absence of any militia connection.

Part III discusses the hotly contested right of public-carry by examining and defining good-cause statutes. As previously noted, such statutes often deny public-carry permits to law-abiding citizens with no mental health concerns unless the applicant is able to establish cause for self-defense over and above the self-protection needs of the general public. This portion of the Note also analyzes the public-carry circuit split in light of the recent Wrenn and Young decisions, and more specifically, exposes the shifting core of the Second Amendment. While Wrenn created the split, Young introduced a third interpretation of the core, thus revealing the core’s malleable nature.

. . .

Part IV raises the point that the judicial focus on the Second Amendment’s core appears to have grown since Heller. Given the current spotlight on the core, this Part argues that the concept of the core is possibly being rendered unnecessarily abstract as a result of the relevant case law’s failure to explain what exactly it means for the Second Amendment to have a core in the first place. This portion of the Note suggests, based on language and inferences drawn from Heller and McDonald, that the Second Amendment’s core is properly defined and understood simply as the Amendment’s primary purpose. It then examines whether such a substitution of terms might have altered the Ninth Circuit’s ruling in Young.

Given the shifting nature of the core, Part VI concludes by arguing that the disagreement among the circuits regarding the right to carry handguns in public makes Supreme Court intervention both necessary and appropriate. In America’s mass-shooting society, the public safety implications of a Supreme Court ruling placing the right of public-carry either inside or outside of the core of the Second Amendment could be profound.

Outstanding Second Amendment and Firearms Law Cert Petitions

As the Supreme Court starts its new Term, with one Second Amendment case docketed (for now), it seems like a good time to review the outstanding petitions awaiting action at the Court. These petitions raise a variety of Second Amendment and firearms-related issues, including important questions of statutory interpretation and the scope of agency discretion. I’ve previously written about the recent requests for Supreme Court review (here and here) and, surprisingly or not, many of the petitions highlighted there–more than four months ago–have yet to be acted on.

Below are the petitions outstanding at the Court (sorted by date the petition was filed). Note that some of these may be resolved on Monday when orders from the Long Conference are expected.

 

Case Court Below Pet. Filed Implicated Law/Issue Status
Mance v. Barr  5th Cir. 19-Nov-18 Federal ban on out-of-state handgun purchases distributed

12-Apr-19 conference

Rogers v. Grewal  3rd Cir. 20-Dec-18 NJ “may issue” public carry regime distributed

23-May-19 conference

Pena v. Horan  9th Cir. 28-Dec-18 California’s Unsafe Handgun Act (microstamping, etc.) distributed

12-Apr-19 conference

Gould v. Lipson  1st Cir. 1-Apr-19 MA “may issue” public carry regime (as implemented locally) distributed

6-June-19 conference

Armament Services v. Barr 3d Cir. 19-June-19 What constitutes a “willful” violation of the Gun Control Act for revocation of a Federal Firearm License distributed

1-Oct-19 conference

Cheeseman v. Polillo N.J. 28-June-19 NJ “may issue” public carry regime relisted for 18-Oct-19 conference
Ciolek v. New Jersey N.J. 18-July-19 NJ “may issue” public carry regime distributed

1-Oct-19 conference

Miller v. Ferguson 9th Cir. 23-July-19 Ban on firearm possession (as sufficient restraint to invoke habeas) distributed

1-Oct-19 conference

Daniel v. Armslist Wisc. 29-July-19 Scope of immunity for gun-broker website under Communications Decency Act resp. due 18-Oct-2019
Remington Arms v. Soto Conn. 1-Aug-19 Scope of  gunmaker immunity under the Protection for Lawful Commerce in Arms Act reply due 18-Oct-2019
Guedes v. ATF D.C. Cir. 29-Aug-19 Ban on bump stocks resp. due 4-Nov-2019
Medina v. Barr D.C. Cir. 30-Aug-19 Ban on felon possession under 922(g)(1) (as applied) resp. due 4-Nov-2019
Worman v. Healey 1st Cir. 23-Sep-19 Ban on assault weapons and high-capacity magazines resp. due 25-Oct-19
Malpasso v. Hamilton 4th Cir. 26-Sep-19 MD “may issue” public carry regime resp. due 30-Oct-19

 

 

 

 

Scholarship Highlight: Lund on Second Amendment Methodology

Nelson Lund has posted a new paper to SSRN, History and Tradition in Second Amendment Jurisprudence, forthcoming in the University of Florida Journal of Law & Public Policy. Lund’s paper is fascinating and provocative. He argues that the approach advocated by then-Judge Kavanaugh—that focuses on text, history, and tradition in lieu of traditional methods of means-end scrutiny—is misguided. Justice Kavanaugh, Lund contends “misinterpreted Heller” and thus adopted an approach “he mistakenly imputed to Heller.”

Did the Supreme Court Dictate Lower Courts’ Second Amendment Interpretive Theory?

In Ezell v. City of Chicago, the Seventh Circuit concluded that it had “to follow the Court’s lead in resolving questions about the scope of the Second Amendment by consulting its original public meaning as both a starting point and an important constraint on the analysis.” In other words, the Seventh Circuit thought it was bound to an originalist methodology in assessing Second Amendment claims. In his concurring opinion in Kisor v. Wilkie last term, Justice Gorsuch may have cast some doubt on such a strong assumption.

Retrospective on Fall Symposium: Gun Rights and Regulation Outside the Home

Last Friday, the Center hosted its fall symposium on Gun Rights and Regulation Outside the Home. The discussions generated through the panel presentations and Q&A portion of the event were engaging and thought-provoking. We intentionally convened scholars from a broad variety of disciplines and viewpoints. Judging by the presentations, there’s no doubt that the spring issue of Law & Contemporary Problems, which will be publishing the articles that come out of the symposium, is going to be well worth the read. The event was recorded and the panel discussions can be viewed at the links below.

Florida Appeals Court Upholds Red Flag Law against Constitutional Challenge

Jefferson Davis (not that one), a Gilchrist County Sheriff’s deputy, allegedly threatened to kill another deputy after he discovered that his girlfriend had been involved with the man. His colleagues sought and obtained a Risk Protection Order (“RPO”) under Florida’s new “red flag” law. Davis appealed, raising a number of challenges to the RPO entered against him and to Florida’s entire scheme. In Davis v. Gilchrist County Sheriff’s Office, Florida’s first district court of appeal rejected those challenges. This case represents one of the few rulings on the constitutionality of “red flag” laws generally and the first on Florida’s law. The Florida court joins courts in Indiana and Connecticut in upholding these types of laws against constitutional challenge.

Two New Second Amendment Cert Petitions

In the last few weeks, two new cert petitions have been filed asking the Supreme Court to review recurrent issues in litigation over the right to keep and bear arms. Below are links to the petitions and excerpts of their Questions Presented. We’ll be watching these as the Court comes back to a new Term next week.