Month: October 2019

Scholarship and the “Constitutional Case for Gun Control”

Earlier this week, Yale law students Joshua Feinzig and Joshua Zoffer published a powerful piece in The Atlantic describing the “A Constitutional Case for Gun Control.” Inspired in part by Robert Cover’s work on the essential role of narrative in imbuing law with moral authority, they argue that the narrative-driven brief filed by the March for Our Lives Action Fund in NYSRPA “marks the beginning of a long-needed effort to offer a pro-gun-control constitutional narrative, one that calls attention to the constitutional rights and goods vindicated by gun regulation.”

The Textualist Consequentialist? Second Amendment Implications of the Title VII Arguments

There was a curious exchange in the most recent cases testing the boundaries of Title VII’s proscription against sex discrimination in employment. In R.G. & G.R. Harris Funeral Homes v. EEOC, an employee who alleges she was fired for identifying as a transgender woman claims that that adverse action violates the Civil Rights Act of 1964. Much of the focus in the oral arguments for Harris Funeral Homes, and a set of closely-related sexual orientation discrimination cases heard that same day, centered on the text of the statute. No doubt part of this emphasis arose from the plaintiffs’ strategic calculation that a tight textual argument may be enough to sway one of the Court’s staunchest textualists, Justice Neil Gorsuch, even if he may not be a natural ally in these cases. But some of his questioning raised concerns that he may, in the end, be only a “faint-hearted textualist”—much as Justice Scalia confessed that “in a crunch” he might have “prove[d] a faint-hearted originalist.”

Litigation Highlight: No Compensation for Bump Stock Owners

In response to the horrific Las Vegas massacre, which left 58 dead and many more injured, the Trump Administration issued a Final Rule in December 2018 classifying bump stocks–the device the shooter used to inflict maximal carnage–as “machine guns” and thus banned under federal law. A group of individuals and entities who owned previously legal bump stocks sued in the Court of Federal Claims, arguing that they were entitled to compensation under the Fifth Amendment’s Taking Clause for having to destroy their property. On October 23, 2019, in Modern Sportsman v. United States, the Court of Federal Claims dismissed the challenge, holding that the Final Rule was promulgated pursuant to the police power to protect public safety and therefore not a compensable taking under the Fifth Amendment. The decision could have implications for the pending challenge to the Rule itself and to the viability and scope of new proposals for federal assault-weapons bans.

Scholarship Highlight: “Libertarian Gun Control”

Most legal scholarship and public debate about gun rights and regulation focuses on whether and how gun laws can prevent homicide—understandably so, given the astounding number of gun homicides in the United States every year. But as those closer to the debate are well aware, the majority of gun deaths are by suicide. And far less discussion has been devoted to that uncomfortable and seemingly-intractable topic.

All of which means that Ian Ayres and Fred Vars’ “Libertarian Gun Control,” just published in the University of Pennsylvania Law Review, is an especially welcome addition to the literature. In it, they describe a system by which people could choose to waive their right to keep and bear arms—and to credibly communicate that decision to others, thereby setting up something of an associational marketplace. Such a system (distinct from the waiver that Dru Stevenson has discussed on this blog) could help prevent both homicides and suicides, all based on individual choice rather than traditional regulation.

New Blog Feature: SCOTUS Gun Watch, Episode 1

We’re excited to announce a new blog feature that will be a recurring Monday fixture of the blog throughout the Supreme Court’s Term. Each week, we will provide an up-to-date run down of where things stand with the Court’s firearms law and Second Amendment docket. To that end, each Monday will feature an updated chart below based on action taken at the Court throughout the prior week, including new petitions for certiorari that have been filed, Court action on currently pending petitions, changes in deadlines or notations that a case has been set for conference or relisted, etc. We’ll do our best to ensure accuracy, but if you notice anything missing or outdated, please feel free to let us know at firearmslaw@law.duke.edu.

Case Ct. 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 conf.

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

23-May-19 conf.

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

12-Apr-19 conf.

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

6-June-19 conf.

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

1-Oct-19 conf.

Daniel v. Armslist Wisc. 29-July-19 Scope of immunity for gun-broker website under Communications Decency Act reply due @ 1-Nov-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. requested – due 18-Nov-19
Culp v. Raoul 7th Cir. 10-Oct-19 IL refusal to grant carry permits to most non-residents resp. due 14-Nov-19

Litigation Highlight: New Cert Petition in Culp v. Raoul

Last week, several plaintiffs filed a petition for certiorari asking the Supreme Court to review a Seventh Circuit decision upholding Illinois’s refusal to allow most non-residents to apply for a concealed-carry license. Here’s from the Question Presented:

This Court has held that the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” District of Columbia v. Heller, 554 U.S. 570, 592 (2008). Illinois prohibits the non-residents of 45 states from applying for an Illinois concealed carry license, regardless of their individual qualifications and training.

 The question presented is:

Whether the Second Amendment right to keep and bear arms requires that the State of Illinois allow qualified non-residents to apply for an Illinois concealed carry license.

The response is currently due November 14, 2019. Like its other pending Second Amendment cases, the Court may very well decide to hold Culp until it resolves New York State Rifle & Pistol Association v. City of New York.

The Second Amendment of Things (and Grievances)

[This post is part of a symposium on Mary Anne Franks, The Cult of the Constitution (Stanford University Press, 2019), hosted on the Balkinization blog and is cross-posted there.]

The second chapter of Mary Anne Franks’ exceptional new book, Cult of the Constitution, shows how constitutional fundamentalism distorts debates about gun rights and regulation. In doing so, it offers novel contributions to the increasingly vibrant scholarly literature on the Second Amendment. I’ll focus on two; one conceptual and the other doctrinal. The first is Franks’ focus on the physical instrument (the gun) that is central to the right; the second is what her argument suggests about the future of Second Amendment doctrine.

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.