Federal Circuits and the Second Amendment in 2018

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


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.

NEXT: My USA Today Op Ed on Using Emergency Powers to Build Trump's Wall

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  1. While the Supreme Court does its part in that same task by refusing every opportunity to stop them.

  2. When the Second Amendment is at issue progressive Judges and Justices will find law, facts and a rationale to reach their desired result. Logical arguments and the Constitution are not apt to get in the way. The outcome of Second Amendment litigation (with few exceptions) can be determined by simply looking at who appointed the decision makers.

    1. So prior to Heller you believed the word “state” in the 2A referred to America?? Because for some reason Ted Cruz didn’t make that assertion in his amicus brief.

      1. It should not be necessary to point out to anyone (other than progressives) that the RTK is a human right which the 2- A merely acknowledges.Most all Democrat appointees on the bench cannot cope with this simple fact.

        1. Its why they are incompetent to hold office and should be impeached immediately.

          If you have a fundamental problem with basic human right to defend oneself with the weapon of your choice, you are living under the wrong political system. The USA is just not for you.

      2. many commentators and historians believe the term State meant society

        “neccessary for a free state”
        necessary for a free society

        1. It’s not a big deal either way, because it’s still a “right of the People”, not a power of state governments, that’s being guaranteed. It only has to do with the justification given for protecting it.

          1. “It’s not a big deal either way, because it’s still a “right of the People”, not a power of state ”

            It is a big deal – Only because those arguing that the right only exists when serving in a State milita use the term state to mean ” one of the 13 origninal states or one of the current 50 states (or is that 57 states) .

            Mike 45 below has a good point that the right to form militia’s and the individual right are both protected in 2A and those two separate and distinct rights are not mutually exclusive.

      3. “A free state” can refer to a free society or individual states. It still wouldn’t change the core meaning of the 2nd amendment.
        The 2nd amendment, like many amendments in the Bill of Rights, has multiple parts.
        The 2nd amendment reserves the right to keep and bear arms to individual persons, while also affirming the authority of free states to form and arm militias. These two things are not mutually exclusive, and doesn’t give the state any power to restrict individually owned arms. This is reinforced by the 10th amendment.
        The tenth amendment:
        “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, OR to the people.”

        1. “The 2nd amendment, like many amendments in the Bill of Rights, has multiple parts.
          The 2nd amendment reserves the right to keep and bear arms to individual persons, while also affirming the authority of free states to form and arm militias. These two things are not mutually exclusive, and doesn’t give the state any power to restrict individually owned arms.”

          Well stated. – One of the core beliefs of those denying the individual right to keep and bear arms is the right is limited to only those times when serving in the militia with the logic based on the weak concept that the two different and distinct rights are mutually exclusive.

          1. Even that gun grabber argument should have been ruthlessly mocked.

            The militia consisted of average men using their own weapons.

            This included but not limited to: swords, rifles, pistols, cannons, knives, cavalry horses, ships….

  3. During the time of the Framers it was well understood the RKBA was subject to liberal regulation. A RKBA can coexist with common sense regulations like Texas requiring purchasers of handguns to be over 21, or Texan George HW Bush signing prohibitions of guns in school zone legislation.

    1. So if an invading army gets chased by a well-regulated militia, and hides in a school, the militia has to call the police to deal with it?

      1. What if it hides in the Supreme Court building, or any other courthouse? What if it hides in the Oval Office?

        Great argument.

      2. Few armies are so small as to be able to hide in a schoolhouse.

        1. “An Army of One” could!

      3. Well, as long as that school is not in Broward County. P

    2. Your citation about the Founders fell off.

      1. I guarantee you the Supreme Court eventually finds some right to carry but allows that particular right to be liberally regulated…because that has always been the way this right has been treated.

  4. Thomas’ concurring opinion in McDonald discussing the P& I clause as the more appropriate avenue for incorporation.

    In his concurring opinion, he discussed how the due process clause has been used to bastardize the textual rights and to circumvent and limit the plain meaning of rights outlined in the BoR. One of the problems mentioned was how the due process clause was misused to create fundemental rights vs non fundemental rights – ie the concept that the court could pick and chose which rights to protect. Further Thomas highlighted how the due process clause was used to insert policy choices.

    The mangiling of the constitution via morphing of due process clause and the use of precendents has been used to get the results in such cases as Kelo and civil forfeiture,

  5. I vaguely remember reading some federal judge (it may have been Richard Posner, but I can’t swear to it) claiming that judges had a duty to creatively re-interpret laws and Constitutional provisions if the straight-forward reading would produce a really bad horrible no-good awful result. And many judges are applying this here because they sincerely & truly believe that “ordinary people have a right to own and carry guns” is a really bad horrible no-good awful result. So they see it as their judicial duty to come as close as they can to striking down the 2nd Amendment as Unconstitutional.

    For that matter, the dissenting minority in Heller and McDonald seem to have felt the same way.

    Now from my point of view, these rulings are the legal and moral equivalent of the Slaughterhouse cases and Plessy. But IANAL, so what do I know?

    1. To clarify & correct, since I can’t edit. My second-to-last sentence above referred to the dissents in Heller and McDonald. and to the creative rulings of the lower court judges.

    2. They must have also thought that denying gay men the “right” to anally penetrate another dude and get “married” was a “no good result.”

    3. Does this same logic apply to all the lower court decisions nibbling away at Roe, or Casey?

      1. Yes. The same logic does apply to the lower courts nibbling away at Roe, Casey, Heller, and McDonald.

      2. Roe v. Wade is not a Constitutional “provision”. It was law created by the SCOTUS and does not have the same protections that say the 1st or 2nd Amendments do.

        Right to choose abortion under a 9th Amendment right to privacy or right to medical privacy is such a better position that I could see having a similar force of protection as the Bill of Rights.

        Better yet, a Constitutional Amendment protecting abortion or privacy would be the most secure.

        1. 9th Amendment says your reasoning is invalid.

    4. Seems more like what the courts used to do with the first amendment, e.g. Schenck

  6. And people wonder why I’m of the opinion that California Democrats are unfit to serve in our Government. If I lived in California, I’d be a voluntary felon, and awaiting the day the police came to knock on my door to attempt to confiscate my Constitutionally-protected property.

    1. +1000

      1. The “progressives” claim that anyone who wouldn’t comply with their confiscation schemes is not law abiding and therefore unfit to own a gun. It’s a very circular set of logic they have created.

  7. 2nd Amendment: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

    You would think years of undergraduate college and then law school would teach judges to read.

    All gun control is unconstitutional. No background checks. No magazine bans or limits. No registrations. No automatic weapons bans. No ammo limits. No ex-felony restrictions. No weapon confiscation schemes.

    These judges are violating their oath of office and should be impeached immediately.

    1. Similarly, the First Amendment ensures that child pornography, securities-related falsehoods, obscene content, unlicensed use of copyrighted works and trademarks, and ‘fighting words’ are lawful.

    2. Where would you draw the line? Technicals? Bazookas? Guided missiles? Helicopter gunships?

  8. This blog post buys way too far into the fiction that police officers generally know the Fourth Amendment precedents under which they are supposedly constrained. This blog post buys way too far into the legal fiction that police officers could understand, remember and/or apply the 4A precedents even if they received extensive, regular training on that.

    1. wrong thread — sorry everyone

  9. The Supreme Court granted certiorari in NYS Rifle and Pistol v. NYC this morning.

  10. How do you square constitutional originalism with the Second Amendment? As far as I can see, from both the plain meaning of the words and the writings of the founding fathers, the 2nd was originally meant to apply to all weapons from a bowie knife up to a battleship, but since the it has been narrowed so that only weapons used for domestic self-defence are considered protected.

    So do you consider that the 2nd should be enforced in its full original meaning by the courts? If so then you would, as far as I can see, have to support the right of any citizen to keep, say, a shoulder-launched surface to air missile and bear it in any public area, such as under the flight departure path of a major airport.

    Or do you consider that the meaning of the 2nd should be understood in the context of modern technological civilization. In which case, how do you distinguish your position from any other “living constitution” theory?

    Or is there a third option I am missing?

  11. “In Massachusetts, the normal practice is that a license to own a handgun also functions as a license to carry concealed for lawful protection.”

    That’s an interesting way to phrase it. But most Massachusetts gun owners would describe it from the other direction, which makes the oppression much clearer.

    It’s illegal even to OWN a handgun in Massachusetts without first jumping through the all hoops necessary to obtain a License to CARRY it… and once you have, your license is often stamped (at the personal discretion of the local police chief, for any reason he chooses) with the restriction that it does not actually authorize you to CARRY the handgun!

    Now you are the proud holder of a mere license to OWN and to transport locked and cased — neither of which most states even require permitting for.

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  13. Hi David,

    Any thoughts on the Third Circuit? It has the magazine ban waiting for an en banc appeal and is evenly split between Republican and Democrat appointees.

    1. Third Circuit Nominee Paul Matey would perhaps break a tie:


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