RW&G

Today's Supreme Court Decision on Second Amendment Likely To Spawn Lawsuits Challenging Local Firearms Laws

by Sayre Weaver


June 2010

Today in McDonald v. Chicago, a 5-4 decision, the Supreme Court held for the first time that the Second Amendment right to possess a handgun in the home for self-defense applies to state and local governments, reversing a decision of the Seventh Circuit, and decades of earlier court decisions.  The Court did not hold that the Chicago and Oak Park ordinances challenged in McDonald offend the right to bear arms, but instead returned the case to the lower courts for further proceedings.  In fact, the Court gave no specific guidance on what standard lower courts must apply to determine if a given firearms regulation impermissibly restricts the right to bear arms. 

The McDonald decision is widely anticipated to spawn numerous challenges to state and local firearms laws, even laws that have previously been upheld by the courts.  Some earlier challenges under the Second Amendment, including to certain state and local laws in California, were stayed by the courts pending the decision in McDonald

Key legal aspects of the decision are discussed below, but for local governments in California, here are some of the likely immediate consequences of the McDonald decision:

Local ordinances regulating firearms possession and sale are now open to challenge under the Second Amendment.  It appears likely that McDonald will generate challenges to a wide range of local firearms regulations, as well as ammunition regulations.  In McDonald, the Court clearly recognized the right to possess a handgun in the home for self-defense is protected by the Second Amendment.  The Court also reiterated that there are several categories of presumptively valid firearms regulations, such as prohibitions on firearms possession by felons and in sensitive places, including schools and government buildings.  However, individual litigants will likely seek to establish that the right is broader in scope than the right acknowledged in the McDonald holding.  Because the Court has given little guidance on what standard a firearms regulation must meet to survive challenge under the Second Amendment, we anticipate that the decision will embolden individual litigants to challenge a wide range of firearms laws, including long standing laws that have previously survived challenge in the courts.

Local ordinances regulating firearms possession and sale must now meet a more rigorous constitutional standard to survive legal challenge.  As noted above, exactly what that higher standard will be remains to be seen, and  it falls to the lower courts to develop the standard on a case by case basis.  Because any restriction on firearms possession or sale might be argued to create some burden on the right to possess a firearm for self-defense in the home, local governments should anticipate numerous lawsuits challenging a wide range of firearms laws.  There are already a number of such challenges in the California courts, which were stayed while those courts waited for McDonald.

Local ordinances regulating possession of handguns, or prohibiting certain types of handguns, such as ultra-compact handguns, are likely to be more vulnerable to challenge under the Second Amendment.  Because the Second Amendment right articulated by the Court pertains to possession of handguns, which the Court characterizes as the most popular weapon among Americans for self-defense, it is likely that local regulations of handguns will be challenged under the Second Amendment.

Successful Second Amendment challenges to local laws may result in the award of attorneys’ fees against a city and to the challenging party.  Cities may want to make an inventory of their local firearms ordinances, and consult with their City Attorneys regarding ways to minimize the risks of Second Amendment challenges.  A listing of many of the major types of local laws regulating firearms adopted by California cities and counties may be found at the Legal Community Against Violence web site, www.lcav.org.

Local governments considering adopting new firearms ordinances may wish to consult with their City Attorneys.  Local firearms ordinances will now be subject to a stricter test in the courts, and the legislative findings that may be needed for a given law to pass muster under the Second Amendment will be of particular importance.

The McDonald litigation involved consolidated cases challenging local ordinances in Oak Park and Chicago restricting handgun possession.  The case is a “sequel” to the Court’s 2008 decision in District of Columbia v. Heller.  In Heller, several individuals challenged a District of Columbia law banning handgun possession as an impermissible infringement of their right to bear arms under the Second Amendment. 

Prior to Heller, the courts had routinely limited the Second Amendment to the exercise of rights in connection with service in the state militia.  In Heller, the Court held for the first time that the Second Amendment protects a personal right outside militia service, including an individual’s right to possess a firearm in the home for self-defense.  Accordingly, the Second Amendment limits how the federal government may regulate firearms possession for personal purposes.  Heller left open a number of questions.  Because the District of Columbia is a federal enclave, the Court did not need to decide, and did not decide whether the Second Amendment constrains state and local action as well as federal regulation.  The Court also declined to state exactly what standard the courts should use when deciding whether a law impermissibly restricts the individual right to possess firearms.  

As part of the original Bill of Rights, the Second Amendment does not apply to state and local governments unless and until the Court “incorporates” the right through the 14th Amendment.  The Court has enunciated a test for incorporation through the 14th Amendment’s Due Process clause, and will incorporate an individual right (i.e., find it creates limits on state and local regulation as well as federal regulation) when the Court determines that the right is fundamental to our scheme of ordered liberty.   Most individual rights enshrined in the original Bill of Rights have been incorporated by the Court.

In McDonald, a plurality of the Court used this traditional “due process” test and held that the Second Amendment is incorporated through the Due Process Clause of the 14th Amendment.  Justice Thomas concurred in the judgment holding that the Second Amendment right is incorporated, but opined that incorporation should take place through the Privileges and Immunities clause of the 14th Amendment instead of the Due Process Clause.  However incorporated, the end result is that the Second Amendment has now been held to apply to state and local regulation of firearms, and it therefore constrains how local and state governments may permissibly regulate firearms.  

Justice Scalia wrote a separate concurrence, as did Justice Thomas.  Justice Stevens separately dissented.  Justice Breyer also wrote a separate dissent, in which Justices Ginsburg and Sotomayor joined.

For more information on how the McDonald decision may affect your jurisdiction and what steps may be taken to reduce the risks of Second Amendment challenges, please contact Sayre Weaver at 800.552.0412 or sweaver@rwglaw.com.

Sayre Weaver advises public clients on all aspects of local regulation of firearms and ammunition.  She currently represents the County of Alameda in Nordyke v. King, a challenge to the County’s prohibition on firearms possession on county-owned property.


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