IN THE COURTS
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Courts play a critical role in interpreting the Second Amendment, and have helped form a consensus that gun safety laws are consistent with the Constitution.
Since the United States Supreme Court’s landmark decision in District of Columbia v. Heller, 554 U.S. 570 (2008), Giffords Law Center to Prevent Gun Violence has tracked all Second Amendment challenges to federal, state, and local gun laws. This document analyzes the state of Second Amendment jurisprudence after Heller and examines its implications for many different laws designed to reduce gun violence. In preparing this analysis, we have examined over 1,400 federal and state post-Heller Second Amendment decisions.
We summarize here the most important Second Amendment lawsuits and decisions since Heller. For more Second Amendment resources, see our Second Amendment page.
In a 5–4 ruling in Heller, the Supreme Court held for the first time that the Second Amendment protects an individual right of law-abiding citizens to possess an operable handgun in the home for self-defense. Accordingly, the Court struck down Washington D.C. laws prohibiting handgun possession and requiring that firearms in the home be stored unloaded and disassembled or locked at all times.
The Supreme Court cautioned, however, that the Second Amendment right is “not unlimited,” and does not confer a “right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”1 The Court noted, for example, that courts historically have concluded that “prohibitions on carrying concealed weapons were lawful under the Second Amendment,” and it identified a non-exhaustive list of “presumptively lawful regulatory measures,” including “longstanding prohibitions on the possession of firearms by felons and the mentally ill,” laws forbidding guns in “sensitive places” like schools and government buildings, and “conditions and qualifications” on the commercial sale of firearms.2 The Court also noted that laws banning “dangerous and unusual weapons,” such as M-16 rifles and other firearms that are most useful in military service, are consistent with the Second Amendment.3 Finally, the Court declared that its analysis should not be read to suggest “the invalidity of laws regulating the storage of firearms to prevent accidents.”4
In 2010, in McDonald v. City of Chicago, 561 U.S. 742 (2010), the Supreme Court held in another 5–4 ruling that the Second Amendment is among the “fundamental rights”5 that limit state and local governments as well as the federal government. The Court invalidated a Chicago law entirely prohibiting the possession of handguns, but reiterated that a broad spectrum of gun laws remain constitutionally permissible.6
The Supreme Court has weighed in on a Second Amendment case only two times since 2010. The first was in Caetano v. Massachusetts, involving a Massachusetts law that prohibits private possession of stun guns. In a short, unsigned opinion the Court did not break any new legal ground or rule that stun guns are protected by the Second Amendment.7 Instead, the Court’s decision in Caetano simply vacated and remanded the Massachusetts Supreme Court’s decision upholding the constitutionality of the state’s stun gun ban, and directed the state court to apply Heller.
Second, in 2019, the Supreme Court heard a case brought by a state affiliate of the NRA called New York State Rifle & Pistol Association v. City of New York (“NYSRPA”). However, the Court ended up not issuing a Second Amendment ruling. Instead, by a 6–3 vote, the justices found that that the NYSRPA case was moot based on New York City’s repeal of the challenged handgun transport restrictions.8 Note, however, that four justices joined separate opinions suggesting that they might support taking up another Second Amendment case in the future.9 Justice Kavanaugh, who agreed that the case is moot, wrote a separate concurrence to express “concern” that lower courts are wrongly upholding gun regulations. Justice Alito wrote a dissent, joined by Gorsuch and in part by Thomas, disagreeing that the case is moot and expressing the same concern over lower courts.
Since Heller and McDonald, courts have been inundated with claims that various federal, state, and local laws regulating firearms violate the Second Amendment. These claims have been asserted in both civil lawsuits and criminal prosecutions—and the vast majority of these challenges to gun safety laws have failed, largely because the Supreme Court already rejected them in Heller. As described above, that decision expressly endorsed lifesaving gun regulations like concealed carry regulations, laws prohibiting dangerous people from accessing guns, and safe storage laws. Most lower courts have taken seriously Heller’s instruction that the Second Amendment is “not unlimited” by consistently voting to uphold laws like these that protect the public without infringing constitutional rights.
As discussed below, courts have upheld numerous commonsense gun laws against Second Amendment challenges.
By contrast, courts have struck down gun laws in a relatively small number of cases, and even then, most have been careful to note that the Second Amendment does not prohibit most laws designed to reduce gun violence.
Moreover, the Supreme Court has declined to review over 150 Second Amendment cases since Heller, leaving lower court decisions upholding many reasonable gun laws undisturbed.
The Heller and McDonald decisions left many questions unanswered about how courts should interpret and apply the individual right recognized in those cases. Among the significant issues left open were major methodological questions regarding how courts should evaluate Second Amendment claims, as well as important substantive questions, such as the extent of the Second Amendment’s application outside the home.
Although different lower courts have suggested a variety of different ways to handle Second Amendment claims, a near-consensus has emerged around a basic two-step inquiry. That methodology asks, first, whether a challenged law imposes a burden on conduct falling within the scope of the Second Amendment. If the court finds that it does not, the Second Amendment challenge fails at the threshold, without requiring any further analysis. If a court finds, by contrast, that a regulation indeed implicates conduct protected by the Second Amendment, it then turns to the second step of the analysis, determining the appropriate level of constitutional scrutiny and asking whether the law satisfies that scrutiny.10 As discussed in detail below, the proper level of scrutiny is generally determined by looking at how severely the law in question burdens the “core” Second Amendment right of self-defense in the home.11
The first step of the two-pronged inquiry asks whether a challenged law “imposes a burden on conduct falling within the Second Amendment’s guarantee.”12 This question generally turns on “whether the regulation is one of the ‘presumptively lawful regulatory measures’ identified in Heller, or whether the record includes persuasive historical evidence establishing that the regulation at issue” is the type of longstanding law historically understood as consistent with the Second Amendment.13 In describing the proper scope of the Second Amendment, the Heller Court identified a number of categorical limitations, described below.
Heller identified a non-exhaustive list of “presumptively lawful” regulatory measures that courts have generally agreed do not offend the Second Amendment. As noted above, they include “longstanding prohibitions on the possession of firearms by felons and the mentally ill, [and] laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, [and] laws imposing conditions and qualifications on the commercial sale of arms.”14 Because Heller suggested that these “presumptively lawful” regulations fall outside the scope of the Second Amendment,15 most courts have had little trouble upholding them.16 At the least, courts have pointed to laws’ “presumptively lawful” status in rejecting the application of the most rigorous form of judicial scrutiny, so-called strict scrutiny, to them.17
The Heller Court also noted that civilian ownership of powerful, military-style weapons such as M-16s, and similarly dangerous weapons, falls outside the protection of the Second Amendment. Lower courts have used this rationale to uphold laws prohibiting or regulating particularly “dangerous and unusual” weapons.18 Courts have uniformly held, for example, that machine guns are “dangerous and unusual” and that barring civilian possession of them does not offend the Second Amendment.19 Courts have also deemed silencers, grenades, bombs, mines, and short-barreled shotguns unprotected “dangerous and unusual” weapons.20 Several courts have also held that military-style assault weapons and large-capacity magazines are unprotected by the Second Amendment, either because they are dangerous and unusual, or because they are comparable to the M-16, a weapon Heller permits prohibiting.21
Heller recognized that laws sufficiently “longstanding” to be considered consistent with how the right to bear arms has historically been understood also fall outside the Second Amendment. As the D.C. Circuit explained, “Heller tells us ‘longstanding’ regulations are . . . presumed not to burden conduct within the scope of the Second Amendment. This is a reasonable presumption because a regulation that is ‘longstanding,’ which necessarily means it has long been accepted by the public, is not likely to burden a constitutional right; concomitantly the activities covered by a longstanding regulation are presumptively not protected from regulation by the Second Amendment.”22
If a court finds at the first step of the two-pronged inquiry that a challenged law does, in fact, burden conduct protected by the Second Amendment, it proceeds to step two, and applies “an appropriate form of means-end scrutiny.”23 While what constitutes the “appropriate” level of scrutiny is a subject of continued disagreement among Second Amendment litigants, the majority of courts have embraced so-called intermediate scrutiny.
The Court in Heller stated that the “rational basis” test—where a law is constitutional if it is rationally related to a legitimate government interest—is not appropriate in the Second Amendment context. The Court noted that “[i]f all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.”24 Courts have, accordingly, uniformly rejected rational basis scrutiny.
With rational basis review off the table, courts have chosen between two levels of heightened scrutiny: “intermediate scrutiny,” which examines whether a law is reasonably related to an important or significant governmental interest, and the more rigorous “strict scrutiny,” which asks whether a law is narrowly tailored to achieve a compelling government interest.
Courts have generally agreed that the appropriate level of scrutiny depends on the severity of the challenged law’s burden on Second Amendment rights.25 The Second Circuit, for example, has stated that heightened scrutiny is only appropriate where the challenged law substantially burdens conduct protected by the Second Amendment.26 The Fourth, Fifth, and Ninth Circuits have said that “the level of scrutiny in the Second Amendment context should depend on ‘the nature of the conduct being regulated and the degree to which the challenged law burdens the right.’”27 Using this framework, almost all of the federal courts of appeal, including the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth, and D.C. Circuits, have applied intermediate scrutiny in resolving Second Amendment challenges.28 Courts have identified different reasons for applying intermediate scrutiny, but the clear trend suggests that laws which do not prevent law-abiding, responsible individuals from possessing an operable handgun in the home for self-defense should be analyzed under intermediate scrutiny.
A few isolated district courts, and some dissenting appellate judges, have called for the application of strict scrutiny in Second Amendment challenges, primarily in cases involving as-applied challenges to federal laws imposing lifetime firearm prohibitions.29 But, to date, federal circuit courts have rejected the calls for strict scrutiny,30 even in cases involving as-applied challenges to lifetime firearm prohibitions.31 Thus far, no circuit court majority opinion has called for strict scrutiny when reviewing a Second Amendment challenge.
Even the three circuits that have not joined the intermediate scrutiny consensus have not rejected it in favor of traditional strict scrutiny. When the City of Chicago mandated regular training at a shooting range as a condition for gun ownership—but then enacted an absolute ban on shooting ranges in the City of Chicago—a panel of the Seventh Circuit panel struck down the law, applying a standard “more rigorous” than traditional intermediate scrutiny, “if not quite ‘strict scrutiny.’”32 The only remaining circuits, the Eighth and the Eleventh, have not squarely decided what level of scrutiny to apply to Second Amendment challenges.33 And while some dissenting and concurring federal circuit judges have rejected levels of scrutiny altogether in favor of a test based on history and tradition,34 this view has not been adopted in a majority opinion by any circuit court. Recently, divided panels of the Ninth and D.C. Circuits employed a categorical approach to invalidate public carry laws in Hawaii and the District of Columbia, but neither panel purported to overrule prior circuit precedent applying tiers of scrutiny. Instead, the panels concluded that they should apply a categorical approach since the challenged laws would be invalid under any level of scrutiny.35
In rejecting a frequently asserted argument that strict scrutiny should always apply in Second Amendment cases because it is a “fundamental right,” the Tenth Circuit explained that “[t]he risk inherent in firearms and other weapons” distinguishes the Second Amendment “from other fundamental rights that have been held to be evaluated under a strict scrutiny test, such as the right to marry and the right to be free from viewpoint discrimination, which can be exercised without creating a direct risk to others.”36 As a result, the court concluded, intermediate scrutiny is generally the proper level of review for Second Amendment challenges and “appropriately places the burden on the government to justify its restrictions, while also giving governments considerable flexibility to regulate gun safety.”37 With the very limited exceptions discussed above, courts have widely embraced this logic in deeming intermediate scrutiny appropriate in many Second Amendment cases.38
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Regardless of any methodological divisions among the lower courts, in a significant majority of post-Heller cases, courts have rejected Second Amendment challenges and upheld the laws or criminal convictions at issue. Below, we discuss specific gun safety laws and policies that courts have upheld over the last eleven years.
Among the most-litigated questions after Heller has been the extent to which the Second Amendment restricts government from regulating the carrying of guns in public. Heller did not reach this issue, and some courts have declined to extend Heller’s holding outside the home.39 Others have either assumed40 or explicitly ruled41 that the Second Amendment applies at least to some degree outside the home.
There is a strong consensus among all of these courts, however, that the public carry of firearms may be subject to reasonable regulations. Even the courts that have held or assumed that the Second Amendment protects some right to carry a gun in public have expressly recognized the government’s broad authority to regulate guns in this context.42 As courts have observed, the government has much more authority to regulate guns in public, where firearms may endanger third parties, than in private homes.43
Reflecting this consensus, courts generally have affirmed the constitutionality of laws restricting the carry of guns in public. For example, while the Second Circuit assumed that the Second Amendment has some application in public, it upheld New York’s law limiting the carrying of handguns to those with “a special need for self-protection.”44 And the Florida Supreme Court, which also ruled that the Second Amendment applies to some extent in public, similarly upheld Florida’s ban on the open carry of firearms, emphasizing that both the Second Amendment right and Florida’s constitutional right to bear arms are “subject to legislative regulation.”45
Overall, except when confronting laws that prohibit all people from publicly carrying guns in all circumstances, most courts have rejected challenges to laws regulating the carry of guns. They have decisively upheld laws requiring a license to carry a gun outside the home,46 as well as numerous conditions on such licenses, including:
Most notably, out of the eight federal courts of appeal that have directly reviewed challenges to regulations on concealed or open carry, six upheld the laws at issue in their entirety, including the First, Second, Third, Fourth, Ninth, and Tenth Circuits.55 Most of these decisions involved laws requiring all applicants for a concealed carry permit to show “good cause,” or a particularized need to carry a gun for self-defense. For instance, in Kachalsky, the Second Circuit rejected a challenge to New York’s requirement that applicants for a concealed weapons permit show “a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.”56 Though the court assumed that the Second Amendment had “some” application outside of the home, it found, nonetheless, that the “special need” requirement satisfied intermediate scrutiny.57 The First, Third, and Fourth Circuits upheld similar requirements in Massachusetts, New Jersey, and Maryland law that limit the issuance of concealed carry permits to applicants who can show a particularized need to carry a firearm in public.58
Other courts have gone even farther by determining that concealed carry is outside of the scope of the Second Amendment. In Peterson v. Martinez, for example, the Tenth Circuit held that “the Second Amendment does not confer a right to carry concealed weapons,” in light of substantial historical evidence showing that most states banned concealed carry in the nineteenth century.59 The court upheld the concealed carry regulation at issue as outside the scope of the Second Amendment, without applying any heightened scrutiny.60 In 2016, an en banc panel of the Ninth Circuit reached the same conclusion in Peruta v. County of San Diego.61 The Ninth Circuit upheld California’s requirement that a person show “good cause” for a concealed carry permit after finding, as the Tenth Circuit did, that the Second Amendment does not protect the right of members of the general public to carry concealed firearms in public.62
The Seventh Circuit reached a different conclusion from the courts above,63 but significantly, that court was considering an Illinois law that amounted to a blanket ban on all carrying of guns in public by all persons. Illinois was one of the last jurisdictions to completely prohibit the public carry of firearms.64 In 2012, the Seventh Circuit struck down Illinois’ law that entirely banned the carrying of loaded and accessible guns in public, calling it “the most restrictive gun law of any of the 50 states.”65 But in striking down the law, the Seventh Circuit was careful to note that Illinois has many policy options available to it to regulate the carry of firearms in public, including discretionary permit systems.66 After the Seventh Circuit’s decision was issued, Illinois adopted a new public carry licensing system, which has already survived multiple legal challenges.67
In a decision from 2018 that is now non-precedential, a divided Ninth Circuit panel used similar reasoning as the Seventh Circuit to sustain a Second Amendment challenge to Hawaii’s public carry permitting laws—which the panel determined were applied so restrictively that the laws operated like the total ban on public carry that the Seventh Circuit struck down.68 However, after the panel’s decision, the Hawaii Attorney General issued an opinion clarifying that Hawaii’s permitting system is not a total ban and noting ways in which the panel had misconstrued the state’s open carry law.69 The Ninth Circuit later granted Hawaii’s petition for en banc rehearing by an 11-judge panel.70 This means the original panel opinion may “not be cited as precedent by or to any court of the Ninth Circuit”71 and the outcome in Young is uncertain until the Ninth Circuit rehears the case en banc.
The narrow scope of the Seventh Circuit’s ruling, and the uncertain status of the Ninth Circuit panel’s ruling, means that the true outlier decision in this area is Wrenn v. District of Columbia, where a divided D.C. Circuit panel struck down the District’s “good cause” law. Like the laws in California, New Jersey, Maryland, and New York that had previously been upheld in other circuits, the District’s law limited the concealed carrying of loaded handguns to people who could show a heightened need for self-defense.72 The Wrenn panel held that responsible, law-abiding citizens have a broad Second Amendment right to carry guns in public that is “on par” with the right to keep a gun in the home, and which cannot be cabined through a “good cause” law.73 The panel’s conclusion contradicts the historical evidence (relied on by other courts) that the carrying of loaded, concealed weapons has long been seen as uniquely dangerous and more stringently regulated than home possession of firearms—and even prohibited in many early laws.74
The decision in Wrenn would have been a strong candidate for Supreme Court review, because it created a circuit split on the important issue of regulating loaded firearms carried on city streets. However, after the D.C. Circuit denied the District’s petition for rehearing en banc, the District declined to seek Supreme Court review. For this reason, Wrenn remains an outlier opinion, impacting only the District of Columbia. Contrary case law remains in place in other circuits, including the four decisions upholding statewide “good cause” laws. Wrenn makes it more likely the Supreme Court will someday consider the constitutionality of a law regulating the public carry of firearms, but it remains to be seen if and when the Court will take up the issue.
As mentioned above, in Heller, the Supreme Court noted that one limitation on the Second Amendment right is “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.’”75 The Court acknowledged that “weapons that are most useful in military service—M-16 rifles and the like—may be banned” without violating the Second Amendment.76 The Court also recognized that its prior decision in Miller explained that the weapons protected by the Second Amendment are those “in common use at the time”; Miller held that for this reason, short-barreled shotguns are unprotected.77
Seizing upon Heller’s citation to Miller, gun lobby lawyers have urged courts to rely solely on a broad version of what has become known as the “common use” test when deciding whether a dangerous weapon or accessory may be regulated consistently with the Second Amendment. Under the gun lobby’s proposed standard, once any gun or accessory achieves a sufficient market share that it can be considered “common,” it becomes constitutionally immune from regulation. In a dissent from the denial of certiorari in Friedman v. City of Highland Park, Supreme Court Justices Scalia and Thomas appeared to endorse this version of the common use test, and suggested that under the test, civilians have a Second Amendment right to possess assault weapons simply because they are somewhat popular among gun owners.78
But Justices Scalia’s and Thomas’ apparent endorsement of the common use test was part of a dissenting opinion, suggesting that other justices may not find the common use test dispositive in challenges to assault weapon regulations. And many lower courts to consider challenges to restrictions on civilian possession of military-style firearms and accessories—including assault weapons and large-capacity magazines—have rejected the argument that weapons in “common use” (however measured) are constitutionally immune from regulation. Some have observed that the test is problematic because it is unclear how popular weapons must be to be “common,”79 and further, the test is illogical, because it would only allow governments to restrict access to those weapons that are uncommon because they are already prohibited.80 Others have noted that in addition to referencing arms in “common use,” Heller stated that protected arms are those “typically possessed by law-abiding citizens for lawful purposes.”81 This means challengers may need evidence about typical possession—not just sales or manufacturing figures evidencing commonality—in order to show that a particular class of arms is protected under the Second Amendment.82
Many courts have held that, even if a weapon is in “common use” or “typically possessed,” that does not end the inquiry. Instead, they have determined that even if a gun is commonly owned and typically possessed, so presumptively within the scope of the Second Amendment, courts must still apply heightened scrutiny to assess the constitutionality of the law at issue. Using assault weapons and large-capacity magazines as an example, in the vast majority of cases, courts have upheld laws restricting these weapons and accessories after assuming common use, but then applying intermediate scrutiny or a similar test.83 In other cases, instead of applying intermediate scrutiny, courts have resolved challenges at step one of the two-step analysis, by relying on Heller’s recognition that “M-16 rifles and the like” may permissibly be banned. These courts have upheld prohibitions on the civilian possession of assault weapons by reasoning that these are “like” the machine guns that Heller expressly permits prohibiting, because “the AR-15  is simply the semiautomatic version of the M16 rifle used by our military and others around the world.”84
In addition to upholding restrictions on assault weapons and large-capacity magazines, courts have upheld laws banning other particularly dangerous weapons, as well. These include laws:
Another significant policy courts have near-uniformly upheld is prohibitions on gun possession by criminals. Courts have repeatedly upheld laws banning gun possession by people convicted of felonies and some misdemeanors, including domestic violence crimes. Courts have rejected most challenges to laws prohibiting:
Courts have also rejected challenges to sentence enhancements for criminals who possessed firearms while engaging in illegal activity.101 The courts have explained these decisions by citing the statements in Heller and McDonald that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons” and that such measures are “presumptively lawful.”102
Despite the near-uniformity of decisions rejecting challenges to these gun laws, a few outlier lower courts have taken a different approach. A federal district court in Illinois, for example, struck down a provision of Chicago law that prohibited the possession of firearms by anyone who had been convicted in any jurisdiction of the crime of unlawful use of a weapon.103 A federal district court in New York found a federal law imposing a pretrial bail condition prohibiting the defendant from possessing a firearm to be unconstitutional.104 And an Ohio trial court dismissed, on Second Amendment grounds, a criminal indictment against a defendant for possession of a firearm following a conviction for a drug crime, but only found the law at issue unconstitutional as applied to “a Defendant with no felony convictions . . . [who] possesses firearms in his home or business, for the limited purpose of self-defense.”105
In 2016, the en banc Third Circuit sustained two as-applied Second Amendment challenges to the federal law prohibiting gun possession by felons, though the court issued a badly fractured decision with no unified rationale.106 Since that decision, a few district courts have sustained an as-applied Second Amendment challenges to lifetime firearm possession prohibitions,107 while others have allowed such challenges to proceed past a motion to dismiss.108 These decisions represent a small minority of courts, and they apply only to particular people who are able to show that their personal circumstances potentially warrant lifting a lifetime firearms prohibition. As discussed above, the vast majority of courts have upheld laws limiting or banning gun possession by persons convicted of crimes, including in as-applied challenges.109
Besides finding that laws prohibiting firearm possession by convicted criminals do not offend the Second Amendment, courts have also routinely upheld prohibitions that apply to other categories of persons determined to be irresponsible with firearms or pose a threat to public safety. In particular, courts have upheld laws:
Courts have reached a different outcome in only limited circumstances. For example, when reviewing the federal law that prohibits gun possession by people who have been involuntarily committed to a mental institution, two courts departed from the categorical reasoning employed in the above decisions, suggesting that in some cases, the lifetime nature of that prohibition might violate the Second Amendment. Both cases involved as-applied challenges brought by plaintiffs who had been involuntarily committed many years ago; both plaintiffs alleged that they had since recovered from mental illness, but had no available means to restore their gun rights other than by bringing a Second Amendment challenge.119
In Tyler v. Hillsdale County Sheriff’s Department, the en banc Sixth Circuit ruled that a 74-year-old plaintiff who was involuntarily committed thirty years ago after a difficult divorce could bring an as-applied challenge to the federal law prohibiting him from possessing firearms on the basis of his commitment.120 A fractured majority of the court agreed that intermediate scrutiny governed the plaintiff’s challenge, and the court remanded the case to the district court, explaining that in order to justify the lifetime ban under this standard, the government should present specific evidence either that the plaintiff is still mentally ill, or that a lifetime possession prohibition is necessary for all who have been involuntarily committed, regardless of how long ago it occurred.121
A district court in the Third Circuit went even further in a set of as-applied challenges, holding that two plaintiffs had, in fact, shown it was unconstitutional to prohibit them from possessing guns on the basis of mental commitments that occurred more than ten years ago.122 One of the plaintiffs in Keyes v. Lynch was involuntarily committed when he was fifteen years old; after his commitment, plaintiff recovered, served in the army, and became a corrections officer. In both roles, he was permitted to possess and use firearms in his professional capacity, but not in his home, because of his prior commitment.123 The other plaintiff, a state police officer, was committed in 2006 after a difficult divorce, and after he recovered was similarly authorized to use firearms on the job only.124 In separate decisions, the court concluded these plaintiffs had “compellingly demonstrated” that they no longer pose a mental health-related threat, particularly because it is “illogical” that each plaintiff may now “possess firearms in his professional capacities but not . . . for protection in his own home.”125
The above decisions suggest that in exceptional circumstances, courts may impose individualized exceptions to the federal law that imposes a lifetime firearm ban on the basis of an involuntary mental commitment. Even then, the decisions do not cast doubt on the overall constitutionality of laws prohibiting gun possession by individuals whose mental illnesses or mental health history currently makes them a risk to themselves or others: the Tyler and Keyes decisions apply only to the specific plaintiffs in those cases, who alleged that their commitment took place many years ago, and who were required by the reviewing courts to show that they had recovered from mental illness. And, of course, the decisions do not cast doubt on the constitutionality of laws disarming other dangerous people, like domestic abusers or people subject to restraining orders.
The Supreme Court stated in Heller that “laws imposing conditions and qualifications on the commercial sale of arms” are presumptively lawful regulatory measures that do not offend the Second Amendment.126 Relying on this statement, courts have routinely upheld laws regulating the sale of guns and accessories, including laws:
One federal circuit court, sitting en banc, has upheld a regulation of the commercial sale of arms—a gun dealer zoning law—on the grounds that the historical prevalence of laws regulating gun sales demonstrates that gun sellers do not have Second Amendment rights independent of their customers. In Teixeira v. County of Alameda, the Ninth Circuit rejected a Second Amendment challenge brought by plaintiffs seeking to open a gun store in a location that was off-limits under the county’s zoning ordinance. The court reviewed historical sources and held that the prospective sellers did not have a viable Second Amendment claim because they were unable to allege that the county’s ordinance prevented any potential customers from purchasing firearms within or near the county, where there are a reasonable number of gun stores already.135
Courts have relied on similar reasoning to uphold laws prohibiting the carry of firearms in sensitive public areas. As with conditions on the commercial sale of firearms, “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings” are among the presumptively lawful regulatory measures Heller recognized.136 Since the Heller list is non-exhaustive,137 courts have upheld laws prohibiting guns in a variety of sensitive public areas (in addition to schools and government buildings). Courts have also upheld such laws by applying intermediate scrutiny. Overall, under either approach, the vast majority of courts have upheld laws:
Courts across the country have also upheld numerous other laws regulating firearms, including those related to:
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Despite judicial decisions upholding the overwhelming majority of gun laws, in a few outlier cases, courts have sustained Second Amendment claims. As discussed above, the Seventh Circuit and two district courts struck down laws interpreted to completely ban the carry of guns in public,155 while the D.C. Circuit invalidated Washington D.C.’s “good cause” concealed carry permit law, departing from all other federal circuit courts to have considered such a law.156 In addition, while upholding the central components of Washington’s gun registration system, the D.C. Circuit struck down other provisions in the law, including a ban on registering multiple guns each month and a requirement that residents pass a test on the District’s gun laws.157 The Illinois Supreme Court struck down a law that prohibited carrying guns within 1,000 feet of a public park, finding the law “effectively prohibit[ed] the possession of a firearm for self-defense within a vast majority of the acreage in the city of Chicago.” 158 In 2011, the Seventh Circuit enjoined enforcement of a Chicago ordinance banning firing ranges in city limits where range training was a condition of lawful handgun ownership,159 and the same panel later struck down a zoning law restricting where firing ranges could operate and an age restriction barring entry into ranges by supervised minors.160 Finally, as previously mentioned, courts have approved a handful of as-applied challenges to federal prohibitions on firearm possession, including in the Third and Sixth Circuits.161
Federal trial courts have ruled in favor of Second Amendment claims in various cases, several of which are currently being appealed. A district court in the Seventh Circuit struck down a Chicago law completely banning the sale or transfer of firearms except through inheritance, but explicitly reiterated that cities and states have broad authority to regulate the sale of firearms, including limits on the locations where dealers may operate.162 A district court in the Ninth Circuit, citing the now-vacated Peruta panel opinion, struck down regulations prohibiting the possession of firearms on U.S. Army Corps of Engineers property.163 A district court in the Ninth Circuit also issued an injunction blocking implementation of a California law prohibiting the possession of large-capacity magazines; the court found that California’s prohibitions on the sale, transfer, and possession of large-capacity magazines violate the Second Amendment and that the possession restrictions also violate the Takings Clause.164 The district court’s order is an extreme outlier that contradicts decisions reached by six federal appellate courts.165 Recognizing that the district court’s “decision [to enjoin California’s law] cuts a less-traveled path,” the district judge stayed his own injunction order in part, allowing California to continue to enforce the ban on the manufacture, sale, and transfer of large-capacity magazines pending the state’s appeal to the Ninth Circuit.166 Note that the district court had earlier issued a preliminary injunction that was narrowly affirmed by the Ninth Circuit in an unpublished decision that did not reach the merits of the constitutional challenge, but found only that the district court’s preliminary assessment was not an abuse of discretion.167
In 2016, in Radich v. Guerrero, a federal district court struck down a regulatory system in the Commonwealth of the Northern Mariana Islands (CNMI), a US territory, which prohibited most private individuals from possessing and importing handguns and handgun ammunition. The court found this general prohibition on handgun possession to violate the Second Amendment, noting that “the Commonwealth’s ban on handguns cannot be squared with the Second Amendment right described in Heller and McDonald.”168 Later that year, the same federal district court struck down other aspects of CNMI’s gun laws, including a $1,000 handgun excise tax, a blanket prohibition on the public carry of firearms, a ban on certain assault weapons features, and a ban on long guns with caliber greater than .223.169
Other outliers include: a North Carolina district court decision finding that a state law prohibiting the carrying of firearms during states of emergency violated the plaintiffs’ Second Amendment rights,170 an Ohio state-court decision sustaining a constitutional challenge to a domestic violence restraining order that prohibited the respondent from possessing firearms,171 a Massachusetts federal district court decision finding that a U.S. citizenship requirement for possessing and carrying firearms violated the plaintiffs’ Second Amendment rights,172 and decisions in Massachusetts, Illinois, Michigan, and New York striking down state laws prohibiting the possession of Tasers and stun guns, concluding that the Second Amendment protects those devices.173
Since issuing its opinions in Heller and McDonald, the Supreme Court has declined to hear a number of appeals from decisions upholding gun safety laws. In January 2019, the Court broke from this pattern by granting review in New York State Rifle & Pistol Association v. City of New York (“NYSRPA“), a case involving a challenge to a unique provision in New York City’s handgun licensing regulations that restricts transportation of handguns licensed for the home. In April 2020, the justices found that that the NYSRPA case was moot based on New York City’s repeal of the challenged handgun transport restrictions, and so did not issue a substantive Second Amendment ruling.174 Note, however, that four justices joined separate opinions suggesting that they might support taking up another Second Amendment case in the future.175
The sole other exception is Caetano v. Massachusetts (2016), involving a Massachusetts law prohibiting private possession of stun guns.176 In a per curiam opinion, the Court did not rule that stun guns are protected by the Second Amendment, but vacated and remanded the Massachusetts Supreme Court’s decision upholding the constitutionality of the state’s stun gun ban.177 The state later dropped the prosecution at issue, so the Caetano case did not continue after remand, though the Massachusetts Supreme Court determined in a later case that the stun gun ban violated the Second Amendment.178
To date, other than in NYSRPA and Caetano, the Supreme Court has denied certiorari in at least 150 Second Amendment cases since Heller, including:
As a result, the many federal and state court decisions upholding the laws described above have been left undisturbed.185
Following the Supreme Court’s decisions in Heller and McDonald, the nation’s lower courts have been inundated with a substantial volume of Second Amendment litigation. As described above, in the vast majority of these cases, courts have rejected Second Amendment attacks on reasonable gun laws and recognized that most federal, state and local firearms laws are plainly constitutional, including because they were recognized as constitutional in the Heller decision itself. Nevertheless, there is little reason to believe that the volume of Second Amendment litigation will decrease, particularly in light of the shifting composition of the Supreme Court, the justices’ recent decision to grant certiorari in NYSRPA, and the concurrence and dissent issued after that case was found moot. Past experience suggests that the gun lobby will continue to bring costly lawsuits and to employ the threat of litigation to obstruct state and local efforts to enact commonsense gun violence prevention measures. Policymakers should rest assured, however, that as things stand today, a comprehensive body of Second Amendment law affirms their ability to adopt a wide variety of reasonable laws to reduce gun violence.
Nevertheless, there is little reason to believe that the volume of Second Amendment litigation will decrease, particularly in light of the shifting composition of the Supreme Court and the justices’ recent decision to grant certiorari in NYSRPA. Past experience suggests that the gun lobby will continue to bring costly lawsuits and to employ the threat of litigation to obstruct state and local efforts to enact commonsense gun violence prevention measures. Policymakers should rest assured, however, that as things stand today, a comprehensive body of Second Amendment law affirms their ability to adopt a wide variety of reasonable laws to reduce gun violence.
The Supreme Court lets lower court victories stand—for now.
Time and again, courts across the nation have affirmed that gun safety laws are constitutional.
Our nation’s highest court has consistently recognized that the Second Amendment is compatible with strong firearm regulations.