FIND GUN LAWS BY STATE

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About the author
ABOUT THE AUTHOR Bryan L. Ciyou is a trial and appellate attorney at the Indianapolis law firm of Ciyou & Dixon, P.C. He earned his BA with distinction and graduated through the honors program, along with his JD,... Read More

Recent Decisions & Upcoming Issues

I. ‘Shall Issue’ Law Suits

Two landmark cases involving the Second Amendment recently reached SCOTUS: District of Columbia v. Heller (2008), declaring an individual has a right to own a firearm, and McDonald v. City of Chicago (2010), affirming the Second Amendment applies to the States. Peruta v. California was set to be the third major case to be heard by the Supreme Court in a decade. However, in June 2017, the Supreme Court declined to hear Peruta, letting stand a 9th Circuit Court of Appeals determination that there is no Constitutional right to carry concealed weapons in public.

Essentially, the problem in Peruta came down to “shall issue” vs. “may issue.” California law allows county/municipal officials to require applicants to demonstrate “good moral character” and “good cause” before they “may” issue a concealed carry permit. The 9th Circuit upheld the Constitutionality of California’s law. In his dissent to the Supreme Court’s decision to not hear Peruta, Justice Thomas wrote: “Even if other Members of the Court do not agree that the Second Amendment likely protects a right to public carry, the time has come for the Court to answer this important question definitively.”

More recently, however, the U.S. Court of Appeals for the District of Columbia Circuit ruled in a line of “may issue” challenges that the District government must grant handgun carry licenses to D.C. residents on the same basis that carry permits are issued in most states. In particular, D.C. may not limit carry permits only to persons who prove a “special need for self-protection distinguishable from the general community as supported by evidence of specific threats or previous attacks that demonstrate a special danger to the applicant’s life.” Instead, D.C. must follow the standard American system: issuing permits to adults who pass a fingerprint-based background check and a safety training class.

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Though this ruling only affects Washington, D.C., it might have national consequences. The outcome in Washington, D.C., or any one of several other similar cases currently being challenged, could end up before the U.S. Supreme Court and determine, once-and-for-all, if the “may issue” qualifier is a prior restraint on citizen’s ability to exercise a Constitutional right.

[http://gunla.ws/mus5], [http://gunla.ws/cslb] & [http://gunla.ws/wm07]

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II. Assault Weapons Bans & The Second Amendment

Are assault weapons and large-capacity magazines (LCMs) protected under the Second Amendment? A recent decision from the 4th Circuit Court of Appeals has created uncertainty regarding how much protection the Second Amendment provides to weapons that are suited more for military use rather than civilian use. In 2008, the U.S. Supreme Court ruled in Heller that, although the Second Amendment is not absolute, a complete ban on a class of weapons (handguns), even for a lawful purpose, violates the Constitution. In the wake of the 2012 Sandy Hook shootings, three states – Connecticut, New York, and Maryland – passed laws banning “assault weapons.”

Keeping in line, the 4th Circuit Court of Appeals recently ruled in Kolbe v. Hogan Jr. that Maryland’s ban on assault-style weapons and LCMs is constitutional. The Heller decision stated that the Second Amendment does not extend protection to weapons that are “dangerous and unusual.” Attempting to stay in line with the Heller holding, the 4th Circuit found that the weapons and LCMs banned by Maryland’s law are dangerous and unusual because they are “exceptionally lethal weapons of war.” Departing from the “common-use” test as proscribed in Heller, the 4th Circuit created what seems to be a “most useful in military service” test.

Assuming the plaintiffs will not give up after this defeat, the next step will be the Supreme Court of the United States. There is no guarantee the Supreme Court would agree to here this case, but the 4th Circuit’s circumvention from Heller may weigh heavily in its decision. [http://gunla.ws/heller] & [http://gunla.ws/wkko]

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III. Domestic Violence & Gun-Owners’ Rights

In June of 2016, the U.S. Supreme Court ruled that those convicted of domestic abuse can be barred from buying or owning a gun for life – even if the violence was “reckless” instead of “intentional.” The 6-2 ruling in Voisine v. United States analyzed the Constitutionality of the 1996 Lautenberg Amendment to the GCA, which regards those convicted of domestic violence misdemeanors the same as felons in prohibiting gun ownership.

The plaintiffs argued that prior convictions should not count for federal purposes because a “reckless” assault is not the “use of physical force” required by federal law. The Supreme Court disagreed and retained the broad definition of domestic violence. By retaining a broad definition, the Court dismissed the argument that gun laws do not cover domestic violence crimes in which the abuser’s intent is not clearly violent. This could give states greater discretion in restricting and confiscating firearms owned by those convicted of “reckless” domestic abuse.

Or, as evidenced by a May 2016 New Jersey appellate court ruling, it could justify “presumptive confiscation” of firearms from anyone even accused of domestic violence. The New Jersey appellate court upheld a lower court’s ruling that law enforcement officers had Constitutional authority to confiscate a man’s guns following a domestic violence arrest.

In June 2013, Arthur Vinogradsky’s wife obtained a restraining order against her husband. As police were removing firearms from the home, they arrested the husband for possessing high-capacity magazines and hollow-point bullets. The wife later dismissed her complaint and Vinogradsky completed a pretrial intervention program, which spared him a criminal conviction on the weapons charges. The judge, however, stripped him of gun ownership rights, finding that he assaulted his wife and committed a crime. [http://gunla.ws/09jd]

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IV. Machine Gun Bans & The Second Amendment

In June 2016, the Fifth Circuit Court of Appeals ruled in Hollis v. Lynch that the NFA/FOPA’s machine gun ban does not violate the Second Amendment. The story began when, complying with the registration requirements for automatic firearms and paying the $200 tax, Aubrey Hollis, on behalf of his revocable trust, filed a Form 1 with the ATF(E) to manufacture an M16 machine gun. His Form 1 was approved, but then revoked by the ATF(E) two days later. Their basis for the revocation was that a trust was not listed as a “person” under a provision of the GCA, and therefore, it reverted back to Hollis the individual. The ATF(E) stated that since the ATF(E) is prohibited from approving any private person’s application to manufacture and register a machine gun, the original approval was issued by mistake.

Hollis filed his complaint against the AG and the ATF(E) seeking to overturn both the NFA and the ban on private ownership of machine guns manufactured after May 19, 1986. Hollis argued that the M16 is suitable for military use, and is thus protected under Miller and Heller. The Court disagreed, claiming that the individual right protected by the Second Amendment only applies to weapons “that are possessed at home and are in common use at the time for lawful purposes like self-defense.” Further, they found that “the Second Amendment does not create a right to possess a weapon solely because the weapon may be used in or is useful for militia or military service. The Court concluded that machine guns are “dangerous” and “unusual” within the meaning of Heller and therefore not in common use, and thus, not protected under the Second Amendment.

The Court also disagreed with Hollis’ interpretation of the meaning of a “trust” and found that, though not explicitly included in the GCA’s definition of a “person,” Hollis himself would in fact possess the machine gun and therefore is subject to the ban. A similar case from the 3rd Circuit Court, U.S. v. Watson, was ruled the same on nearly identical grounds. Going forward, this case means that the 1986 ban on machine guns remains valid and is unlikely to be overturned in court.

[http://gunla.ws/jzdn] & [http://gunla.ws/61hh]

 

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V. Medical Marijuana & Gun Rights

Recreational marijuana use is legal in eight states and the District of Columbia. In these areas individuals may buy and use marijuana without noting it on a background check to purchase firearms. However, if You live in any of the twenty-nine states where medicinal marijuana is available and you have a prescription, the federal government can prohibit You from legally purchasing a firearm.

In August 2016, the 9th Circuit Court voted unanimously to reject Wilson v. Lynch, a suit filed by a Nevada woman who tried to buy a firearm after obtaining a medical marijuana card. The gun store refused to sell her a firearm, citing a federal rule banning firearm sales to illegal drug users. Despite the fact that many states have legalized marijuana for medicinal or recreational use, the federal government still classifies marijuana as an illegal Schedule I drug. The ATF(E) requires gun sellers to assume a person with a medical marijuana card uses the drug, and recently updated the language on the form 4473 so it explicitly says that use of marijuana, even if legal under state law, is illegal under federal law and makes one a prohibited person. The Cole memo, which directs the DOJ from enforcing federal law in states where recreational or medical marijuana is legal, does not apply to gun ownership.

[http://gunla.ws/3n6m]

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VI. Mental Health Lifetime Gun Ban

In September 2016, the 6th Circuit ruled the GCA, which bans anyone “who has been adjudicated as a mental defective or who has been committed to a mental institution” from owning a firearm, could violate the Second Amendment.

The ruling revives a lawsuit – Tyler v. Hillsdale County Sheriff’s Dept. – filed by a Michigan man who was involuntarily committed thirty years ago following an emotional divorce. He had not had any mental-health issues since then, but was prohibited from purchasing a firearm due to the federal law banning gun possession by anyone who has been committed to a mental institution.

Although the Director of the ATF(E) is empowered to restore the rights of those who can demonstrate they are not a danger to public safety, Congress defunded the review program in the 1990’s and has not appointed a director since 2006. For this reason, Tyler maintains the GCA creates a permanent ban on his Second Amendment rights. The Court reiterated that there are compelling reasons for prohibiting people currently or recently suffering from mental illness from possessing a gun. However, they found that none of the government’s evidence squarely answered the key question at the heart of the case: “Is it reasonably necessary to forever bar all previously institutionalized persons from owning a firearm?”

[http://gunla.ws/jl9a]

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VII. Virtual Plans & Real Firearms

The First Amendment protects most speech from prior restraint or censorship by the government. However, technology has begun to test the boundaries of traditional First and Second Amendment doctrine. In December 2016, a Texas-based 3D-printer filed a motion asking the 5th Circuit Court for a rehearing of an earlier ruling that essentially made it illegal for anyone to share gun-design files online. In Defense Distributed v. United States Department of State, the 5th Circuit refused to suspend a regulation restricting publication of computer-aided design (CAD) files that enable the public to print guns or gun parts using a 3D printer.

If sharing CAD code is considered speech, it would be protected by the First Amendment, which would hamper the government’s ability to regulate the physical objects that are printed. This question is especially important when the object at issue is an untraceable weapon.

Defense Distributed describes itself as a nonprofit organization committed to promoting Second Amendment rights by “facilitating global access to information related to the 3D printing of arms” and publishing this information online for free. In 2013, Defense Distributed published a file for the world’s first entirely 3D-printable handgun.

Defense Distributed argues that in reaching its ruling, the 5th Circuit disregarded precedents set by the Circuit Court, as well as the U.S. Supreme Court. This case is expected to be litigated for years and could ultimately engender precedent-setting First and Second Amendment rulings.

[http://gunla.ws/l5qs]

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FIND GUN LAWS BY STATE

Table of Contents

About the author
ABOUT THE AUTHOR Bryan L. Ciyou is a trial and appellate attorney at the Indianapolis law firm of Ciyou & Dixon, P.C. He earned his BA with distinction and graduated through the honors program, along with his JD,... Read More