Federal Circuits and the Second Amendment in 2018

Good decisions in some cases, judicial nullification in some others.

|The Volokh Conspiracy |


Federal circuit courts of appeal continue to have an uneven record in enforcing Second Amendment rights. Last week, Lincoln Memorial University's Duncan School of Law (in Knoxville, Tenn.) held a Second Amendment symposium. My article Federal Circuit Second Amendment Developments 2018, will be published later this year in the school's law review.

In 2018, the federal circuits delivered mixed decisions on magazine confiscation. The Third Circuit denied a preliminary injunction against New Jersey's new confiscation law, while the Ninth Circuit affirmed a district court's injunction against California's older confiscation statute. Both decisions were 2-1.

The circuits also split on whether there is a meaningful right to "bear arms." In Massachusetts, the normal practice is that a license to own a handgun also functions as a license to carry concealed for lawful protection. But Boston and its suburb Brookline often deny carry permits to qualified citizens. The First Circuit upheld the negation of the right to bear arms. In order to do so, the First Circuit abandoned its established test in Second Amendment cases, which looked at text, history, and tradition. Now, the First Circuit uses the Two-Part Test applicable in most other circuits. Switching tests gave the First Circuit the opportunity to apply an unusually weak form intermediate scrutiny in order to upheld the negation of a textual right. Meanwhile, the Ninth Circuit ruled against the County of Hawaii (the Big Island) issuing open carry permits only to security guards. I analyzed the Young v. Hawaii decision in a previous post.

Separately, the Ninth Circuit upheld California's ban on all new models of handguns, which went into effect in 2013. As the article explains, the California statute is part of an effort by gun ban groups to prevent advances in firearms or even to roll back firearms technology by decades or centuries. This includes

  • Confiscating magazines and guns that can fire more than 5 or 10 rounds (invented in the 1400s, and common in America by 1866),
  • Categorizing all semiautomatic rifles as "assault rifles"–even the Winchester 1903, a .22 caliber rifle with 10-round capacity. The first actual "assault rifle" was the German Sturmgewehr, from 1943.
  • Banning modern synthetic or metal stocks that can be adjusted to fit the user's size.
  • Banning muzzle brakes, which stabilize a rifle, and make it more accurate.

In the Second Circuit, judicial treatment of the Second Amendment as a second-class right would be an improvement from current practice. The circuit upheld New York City's unique administrative prohibition on taking handguns out of the city. The empirical basis for the ruling was an affidavit from a police official who was unable to cite a single example of misconduct by New York City licensees who were engaging in formerly-lawful activities, such as taking a handgun from a Staten Island residence to a target range in New Jersey, or transporting a handgun from a residence in Manhattan to a second home elsewhere in the state. The case of New York State Rifle & Pistol Ass'n, Inc. v. City of New York is currently before the U.S. Supreme Court in a cert. petition.

The Fifth Circuit upheld the federal ban on purchasing handguns outside one's state of residence as long as both states consent and the buyer complies with the laws of both states. That case too has a pending cert. petition, following an 8-7 denial of a petition for rehearing en banc. I've previously posted about my amicus brief in that case.

As in previous years, all challenges to the various categories of persons statutorily prohibited from exercising Second Amendment rights were rejected. Although the ban on gun possession by persons convicted of domestic violence misdemeanors has strong support from social science, there is no such support for a continuing prohibition for persons whose conviction was in the distant past. Dissenting in a 2-1 Sixth Circuit case, Judge Danny Boggs raised concerns about the lifetime prohibition of a constitutional right for a long-ago misdemeanor.

After Texas became one of ten states that now provides for licensed concealed carry at state college campuses, three Texas professors sued. One of the professors worried that "religiously conservative students" and "openly libertarian students" would "initiate gun violence" against leftist professors. Of course the professor could not cite a single incident where such a scenario has taken place. The Fifth Circuit rejected her claim that the Texas statute specifying the conditions for where adults may carry arms–after passing a fingerprint background check and safety training–violated the Second Amendment by not being "well-regulated."

The Tenth Circuit held in United States v. Cox that a state statute purporting to exempt an activity from federal law is no defense to a federal prosecution for violating a federal statute. In particular, the Kansas Second Amendment Protection Act authorized, inter alia, the production and sale of short-barreled rifles as long as the rifles never leave Kansas. But this was no defense to the manufacturer and buyer failing to comply with the tax and registration requirements of the federal National Firearms Act of 1934. I will write separately about a separate part of the Cox decision: a thinly-reasoned argument that firearms accessories are not covered by the Second Amendment.

Finally, the Ninth Circuit ended a long-standing case involving arms and self-defense bans in the Commonwealth of the Northern Mariana Islands. Previously, a district court had ruled unconstitutional the following provisions of CNMI gun laws:

  • A law prohibiting lawful permanent CNMI residents who are not of native blood from being issued gun permits.
  • A ban on issuing gun permits for home defense.
  • A handgun possession ban.
  • A handgun import ban.

The CNMI legislature complied with the court's decision and enacted reform legislation. When the Commonwealth declined to appeal, a parent-teacher association sought to intervene in the case and file an appeal. The intervention was rejected by the district court, and then by the Ninth Circuit in 2018, based on lack of standing.

The United States extends from the Virgin Islands and Puerto Rico, in the Atlantic Time Zone, to Guam and the CNMI in the Chamorro Time Zone–a span of twelve time zones. Thus, it may be accurate to say that the sun never sets on the Second Amendment. But it must also be said that the right is sometimes occluded, and that some federal judges seem eager to do their part to extinguish it.