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Defending Gun Control Laws Against Court Challenges The Legal Action Project is at the forefront in defending against court challenges to gun laws and regulations. Virtually every time that a government enacts a new gun law or strengthens an existing one, the gun industry and the gun lobby seek to frustrate the enactment with a court challenge. Over and over, courts uphold these critical public safety laws against attack. The Project's attorneys provide a full range of free assistance to government attorneys defending gun laws, including statistical and other factual material supporting the laws, legal briefs filed in similar cases, updates on new court rulings, suggested expert witnesses and general tactical advice. The Project also enters these cases as amicus curiae or "friend of the court" on the side of the government, filing legal briefs joined by police organizations and other community groups with special concerns about gun violence.
DEFENDING STATE GUN SAFETY REGULATIONS The power to strengthen state laws regarding guns lies not only in the hands of state legislators and governors, but also state attorneys general who can exercise their rule making authority to issue gun safety regulations. This state regulatory power is particularly important because the gun lobby persuaded Congress to make guns exempt from the federal safety oversight that applies to all other consumer products, from automobiles to toys. 15 U.S.C. § 2052(a)(1)(E). The Legal Action Project promotes the adoption of state gun safety regulations by educating state officials about the reasons to issue them, and by helping to defend the regulations when they are attacked in the courts. American Shooting Sports Council, Inc. v. Attorney General Massachusetts is now implementing the nation's strongest gun-safety regulations, which The Legal Action Project helped to defend by filing several amicus briefs in opposition to legal challenges to the regulations' validity. In 1997, Massachusetts Attorney General Scott Harshbarger became the first attorney general in the nation to issue regulations applying basic consumer product safety principles to guns by establishing safety standards for all handguns made or sold in Massachusetts. One day before their initial implementation, a gun industry trade association and several Massachusetts gun manufacturers sued to block the regulations from taking effect. Although a trial court judge ruled that the Attorney General exceeded his authority and enjoined enforcement of the regulations, the Supreme Judicial Court of Massachusetts reversed the trial court's ruling and upheld the regulations as a valid exercise of the Attorney General's rulemaking authority under Massachusetts law. The court held that the Attorney General "may regulate deceptive or unfair acts or practices in the sale of products which fail fundamental requirements of safety and performance." The Legal Action Project filed amicus briefs defending the regulations at every stage of the case.
DEFENDING ASSAULT WEAPONS BANS Throughout the 1980s and 1990s, law enforcement officers and individual citizens faced an increasing threat from violent criminals armed with rapid-fire, high-capacity, military-style assault weapons designed for the principal purpose of killing as many people as possible, as quickly as possible. The nation received chilling demonstrations of the danger of these weapons able to rapidly fire huge amounts of ammunition without the need to reload. For example, in January 1989, an attacker spray-fired a Stockton, California school yard with over one hundred rounds from an AK-47 semi-automatic assault rifle, killing five children and wounding twenty-nine more in minutes. This was not an isolated incident. Data revealed the unique criminal appeal of assault weapons and their disproportionate use in criminal activity. For example, in May 1989, Cox Newspapers widely publicized its study of ATF tracing data determining that assault weapons were twenty times more likely to be traced to crime than other firearms. Responding to this problem, governments began to pass laws restricting the possession, sale, and transport of assault weapons and high-capacity ammunition magazines. In 1989, California became the first state to pass such a law. Other states and local governments followed. Congress enacted nationwide restrictions on assault weapons in 1994. Prior to passing that law, Congress conducted an extensive series of hearings that demonstrated the growing menace to society posed by assault weapons, including their disproportionate use in crime, particularly the most serious kinds of offenses, such as organized crime, gun trafficking, and terrorist crimes. Congress concluded that the effect of assault weapons' military combat features "is a capability for lethality – more wounds, more serious, in more victims — far beyond that of other firearms in general, including other semiautomatic guns" and that "[t]he carnage inflicted on the American people b[y] criminals and mentally deranged people armed with Rambo-style, semi-automatic assault weapons has been overwhelming and continuing." The federal, state, and local bans on assault weapons have come under relentless legal attack from the gun lobby and gun industry. The Legal Action Project has played a vital role in defending these laws. Arnold v. City of Cleveland The Legal Action Project's amicus brief helped the successful defense of Cleveland's ordinance prohibiting possession and sale of assault weapon in the city. The Supreme Court of Ohio held that the ordinance was a reasonable exercise of the city's police powers, and rejected arguments that it infringed the constitutional right to bear arms under the Ohio state constitution or conflicted with federal statutes and regulations in violation of the Supreme Clause of the U.S. Constitution. Benjamin v. Bailey Helping to persuade the Supreme Court of Connecticut to uphold that state's assault weapons ban, The Legal Action Project filed amicus briefs arguing against legal challenges on grounds including equal protection, due process, right to bear arms, and bill of attainder. Richmond Boro Gun Club, Inc. v. City of New York The NRA and other gun groups launched a legal attack on New York City's ordinance banning assault weapons, claiming it was unconstitutionally vague, preempted by federal statutes, and violated liberty and property rights without due process of law. The Legal Action Project filed amicus briefs in the district court and the appellate court, both of which upheld the ordinance against the constitutional challenges. People of the State of California v. Dingman The Legal Action Project, joined by California law enforcement groups, filed an amici brief contributing to an important decision by the Supreme Court of California rejecting this challenge to California's assault weapon ban. The court upheld the conviction of a person convicted of illegally possessing an SKS assault rifle with a 30-round detachable magazine, concluding that by banning "SKS with detachable magazine" the legislature intended to ban any such gun, whether it was originally manufactured with a detachable magazine or subsequently converted to allow it to accept a detachable magazine. Navegar, Inc. v. United States Joined by major law enforcement organizations, The Legal Action Project's amici briefs assisted the successful defense of the constitutionality of the federal assault weapons ban. The Supreme Court declined to review the D.C. Circuit's ruling that the federal ban does not infringe the Commerce Clause of the U.S. Constitution. Olympic Arms, Inc. v. Magaw Helping to defeat yet another challenge to the federal assault weapons ban, The Legal Action Project filed an amici brief joined by nine major national law enforcement organizations. The district court's ruling is now on appeal. Coalition of New Jersey Sportsmen v. Whitman Joined by law enforcement groups, The Legal Action Project has filed an amici brief defending New Jersey's assault weapons ban against vagueness, equal protection, and free speech challenges. Having lost in the district court, the gun organization's case is now on appeal to the U.S. Court of Appeals for the Third Circuit. GOAL, Inc. v. Cellucci After Massachusetts enacted one of the strongest gun control laws in the nation in 1998, the Gun Owners Action League ("GOAL") sued claiming that the law's licensing system for large capacity weapons was unconstitutionally vague. The Legal Action Project assisted the Massachusetts Attorney General's office in winning a dismissal of the gun group's challenge to the law. J.W. Harrott v. County of Kings On November 25, 1996, LAP filed an amicus brief in the Supreme Court of California in a critical case that will decide whether the class of assault weapons banned by California's Roberti-Roos Assault Weapons Control Act of 1989 (AWCA) includes weapons nearly identical to those listed under the statute but not identified therein. This case involves a dispute over the AK-series Clayco assault rifle that was similar to the rifle used in the Stockton school yard massacre which precipitated the California ban. Kasler v. Lockyer Helping to defend California's assault weapons ban against a taxpayer suit seeking to enjoin its enforcement, The Legal Action Project joined California law enforcement groups to file amici briefs in this case that ultimately resulted in a decision upholding the statute and in particular its provision allowing the state's Attorney General to petition a court to add to the list of banned guns any gun that has been "redesigned, renamed, or renumbered" from one of the listed assault weapons. Although the lower appellate court ruled that the add-on procedure was invalid and called into question the constitutionality of the ban itself, the Supreme Court of California reversed that decision and upheld the law. The gun owners and manufacturers that lost this case have asked the U.S. Supreme Court to hear the case. Brady Campaign v. Ashcroft, No. 1:04-cv-00454 (RCL) (United States District Court for the District of Columbia) The Brady Campaign to Prevent Gun Violence united with the Million Mom March filed a lawsuit in federal court on March 19, 2004, charging Attorney General Ashcroft and the Justice Department's Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) with violating the 1994 statute banning the manufacture, sale and possession of semiautomatic assault weapons ("Assault Weapon Ban"). The suit charges Ashcroft and ATF with allowing gun manufacturers to make thousands of new illegal assault weapons. The lawsuit is based in part on documents obtained by the Brady Center from ATF through the Freedom of Information Act ("FOIA"). The documents obtained through FOIA include correspondence with Bushmaster Firearms of Windham, Maine in which ATF repeatedly gave Bushmaster permission to manufacture new "receivers" to replace damaged receivers for semiautomatic assault weapons that were possessed before the Assault Weapon Ban went into effect and thus were protected by the Ban's "grandfather" clause. Since Bushmaster is only one of many gun manufacturers who made assault weapons before the Act was passed, it is likely that ATF has allowed thousands of illegal assault weapons to be manufactured. The "receiver" of a gun is the housing for the firing mechanism of the gun and has a special legal status. Under the Act, the "receiver" of an assault weapon is considered the gun itself. Therefore, by allowing gun makers to manufacture new receivers, ATF has been allowing the manufacture of new assault weapons, in contravention of the statute. When Congress "grandfathered" assault weapons legally possessed when the assault weapon ban was passed, it expected that over time the number of grandfathered assault weapons in circulation would gradually decline, as the guns became nonfunctional due to wear and tear. The Brady Campaign claims that the Justice Department's enforcement policy ensures, instead, that thousands of grandfathered assault weapons will remain functional into the foreseeable future. At the time the statute was enacted in 1994, ATF estimated there were approximately two million assault weapons in circulation. On April 7, 2004, the Brady Campaign moved for a preliminary injunction prohibiting the government from continuing to allow the manufacture of new receivers for semiautomatic assault weapons. The government moved for summary judgment on May 19, 2004. The Brady Campaign responded on June 9, 2004, and a hearing will be held on the Brady Campaign's motion on July 2, 2004.
DEFENDING "SATURDAY NIGHT SPECIAL" BANS "Saturday Night Specials" or "junk guns" are small, low-quality handguns that are favored by criminals because of their low cost and easy concealability, but are not useful for sport or self-defense because their short barrels make them inaccurate and their poor construction quality of make them dangerous and unreliable. After a federal law enacted in 1968 banned the importation of these guns from abroad, a group of manufacturers located in Southern California, known as the "Ring of Fire" producers, began to make large quantities of these guns. In 1988, Maryland became the first state in the nation to ban the sale of these weapons. Other states have done the same, as have a number of major cities. The Legal Action Project assists the defense of these bans when they are challenged in courts. California Rifle and Pistol Association v. City of West Hollywood Filing an amici brief joined by California law enforcement and health groups, The Legal Action Project helped to defend the City of West Hollywood's municipal ban on the sale of "Saturday Night Special" handguns in both the trial court and on appeal. California's Supreme Court declined to review the decision, leaving in place the ruling in favor of the City and its "Saturday Night Special" ban.
DEFENDING LEGAL RESTRICTIONS ON CARRYING CONCEALED WEAPONS State laws place a range of restrictions on carrying concealed weapons (CCW), with some states prohibiting or severely limiting CCW. In recent years, the NRA has made the radical liberalization of these laws a top priority. In addition, CCW laws have come under attack in the courts. The Legal Action Project assists the defense of these laws. Mosby v. McAteer, No. 2001-0161-A (Supreme Court of Rhode Island) The Legal Action Project wrote an amicus brief for the Rhode Island Police Chief's Association, Rhode Island Chapter of the Million Mom March and the Brady Center to Prevent Gun Violence, supporting the state's right to administer its "may issue" concealed carry law. The brief was filed on May 15, 2003, and resulted in a 4-1 ruling by the Supreme Court of Rhode Island upholding the constitutionality of Rhode Island's long-standing law restricting the carrying of concealed weapons to persons with a legitimate need. Two individuals who were denied permits to carry concealed handguns sued the Attorney General's office and the Rhode Island Bureau of Criminal Identification for violating their due process rights. The Rhode Island Attorney General's office has the discretion to grant or deny concealed handgun licenses, making a case-by-case determination of "need" when reviewing applications for concealed handgun licenses, under R.I. Gen. Laws § 11-47-18. The trial court granted the Attorney General's motion to dismiss, finding that the plaintiff's did not have a due process right in the application for a concealed handgun license and that the Rhode Island constitution does not guarantee the right to carry a weapon. Plaintiffs appealed this ruling to the Supreme Court. The Legal Action Project argued that as the Rhode Island constitution does not provide a right to bear arms, nor any right to carry a loaded concealed handgun in public, the plaintiffs had no due process claim. Additionally, Rhode Island law has made clear that the Attorney General has the power to administer the discretionary concealed carry law. Plaintiffs argued that the Rhode Island law should essentially be turned into a "shall issue" law. LAP's amicus brief also pointed out that academic and public policy research demonstrates that most states experience increases in violent crime, murder and robbery when "shall-issue" laws are adopted. In its ruling on June 10, 2004, the Court strongly rejected arguments by the gun lobby that an "individual right to bear arms" provides a right to carry hidden, loaded weapons in public. Instead, the Court held that the restrictive concealed carry law "is reasonable legislative regulation of weapons that falls squarely within the state's police power." The Brady Center's Legal Action Project was assisted in this litigation by the law firm Wilmer Cutler Pickering Hale and Dorr LLP. Klein v. Leis The Legal Action Project is assisting the City of Cincinnati in defending the Ohio laws that control the carrying of concealed weapons and the carrying of weapons in motor vehicles. Four individuals brought the suit seeking to have the state laws struck down as violating various provisions of the U.S. and Ohio constitutions.
PROMOTING FAVORABLE ADMINISTRATIVE INTERPRETATIONS OF GUN LAWS The Legal Action Project works with administrative agencies such as the Bureau of Alcohol, Tobacco and Firearms (ATF), as well as through the courts, to ensure that gun laws are properly applied and enforced. ATF ruling on "thumbhole stocks" When the ATF considered how to interpret the term "pistol grip" in the federal assault weapons ban, The Legal Action Project filed comments urging the agency to interpret the term to include "thumbhole stocks." ATF issued its final rules in March 1998, adopting that suggestion. The inclusion of thumbhole stocks in the final rule closes a loophole that allowed assault weapons manufacturers to avoid the ban on some weapons by simply reconfiguring their grips. Springfield, Inc. v. Buckles A licensed importer challenged ATF's ruling on "thumbhole stocks," suing ATF after it revoked the company's license to import these guns. The district court rejected the importer's argument, finding that the agency's ruling came only after an exhaustive review of the purpose and history of the federal Gun Control Act and prior agency policies and that the agency provided a clear explanation of the basis for the change in policy. The importer has brought an appeal of that decision, and The Legal Action Project will file an amicus brief supporting the ATF's ruling and the lower court's decision.
DEMANDING STRONG ENFORCEMENT OF GUN LAWS Enacting strong gun laws is not the final step. These laws must be enforced to be effective. The Legal Action Project works to ensure that state and federal officials properly enforce the gun laws that legislatures enact, bringing suit if necessary to compel enforcement. Handgun Control, Inc. & Center to Prevent Handgun Violence v. Lungren The Legal Action Project successfully concluded this action brought to compel enforcement of the state's assault weapons ban and to stop illegal registration of these weapons. The California legislature enacted an assault weapons ban in 1989, allowing possession of banned weapons only if the owner registered the gun with the state's Department of Justice by a statutory deadline. California Attorney General Dan Lungren continued to register assault weapons, in violation of the statute, after the deadline passed. The trial court ordered Lungren to stop the illegal registration. While Lungren filed an appeal of that decision, his newly-elected successor Bill Lockyer dropped the appeal, clearing the way for the state to order about 1,600 illegally-registered assault weapons to be turned over to law enforcement. Seegars v. Ashcroft, 297 F.Supp.2d 201 (D.D.C. 2004) The Brady Center filed an amicus brief in support of the District of Columbia's longstanding handgun ban in this case brought by the NRA on Second Amendment grounds. The NRA challenged the ban as unconstitutional, basing its arguments on the Fifth Circuit Court of Appeals decision in Emerson v. United States, 270 F.3d 203 (5th Cir. 2001), cert. denied, 536 U.S. 907 (2002), which for the first time held that individuals have a Second Amendment right to gun ownership for personal purposes unrelated to service in a "well-regulated militia." Fortunately, the Fifth Circuit's reasoning in Emerson has been rejected by every federal appeals court since. In December, the Ninth Circuit issued a stinging repudiation of the Emerson court's flawed reasoning. Silveira v. Lockyer, 2002 WL 31720641 (9th Cir. 2002), petition for cert. filed, July 3, 2003 (No. 03-51). The Brady Center's brief helped expose the Emerson court's errors, pointing to recent historical scholarship that indicates that the Second Amendment was fully grounded in service in the "well-regulated Militia" in place when the Bill of Rights was ratified. The federal D.C. District Court upheld D.C.'s handgun ban in a decision issued on January 14, 2004. U.S. District Judge Reggie B. Walton dismissed the lawsuit and ruled that, "The Second Amendment does not confer an individual a right to possess firearms. Rather, the Amendment's objective is to ensure the vitality of state militias." Plaintiffs have appealed the judge's ruling and the Brady Center filed an amicus brief in support of the District on July 28, 2004. The U.S. Court of Appeals will hear the appeal on November 17, 2004. The firm of Wilmer, Cutler, Pickering, Hale & Dorr is assisting the Brady Center in its brief. Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007) (sub nom. District of Columbia v. Heller) The Brady Center is supporting the District of Columbia in defending its long-standing handgun ban in this case brought by the CATO Institute, a libertarian think-tank. CATO filed a lawsuit on February 10, 2003, on behalf of several District of Columbia residents seeking to strike down as unconstitutional D.C.'s restrictive handgun law, along with separate provisions of D.C. law requiring that registered firearms be kept unloaded or locked when stored at home. The Brady Center filed an amicus curiae brief on behalf of the District of Columbia. U.S. District Judge Emmet G. Sullivan upheld the District's laws in a decision issued March 31, 2004. The CATO Institute appealed the ruling, which was stayed pending the outcome in another case attacking the District's gun laws, Seegars v. Ashcroft. The ruling in Seegars upheld the District's laws and on July 15, 2005, counsel for the District filed a motion to remand asking the Appeals court to affirm the lower court's dismissal of the lawsuit. However, on November 2, 2005, the Appeals Court denied the motion to remand and asked for further briefing on the merits of the case. Briefing was completed in August 2006, and the Brady Center again filed an amicus brief on behalf of the District. A hearing before the Court of Appeals took place on December 7, 2006. On March 9, 2007, the court issued a decision, with two judges overruling the trial court and striking down the District of Columbia's handgun law. The ruling represents the first time in American history that a Federal appeals court has struck down a gun law on Second Amendment grounds. In doing so, the two judges disregarded nearly seventy years of U.S. Supreme Court precedent, negated the democratically-expressed will of the people of the District of Columbia and deprived the community of a gun law it enacted thirty years ago and still strongly supports. The dissent vigorously disagreed, correctly noting that the Second Amendment "relates to the Militia of the States only." While acknowledging that "reasonable restrictions" to promote "the government's interest in public safety" are permitted by the Second Amendment, the two-judge majority substituted its policy preferences for those of the elected representatives of the District of Columbia. On May 8, 2007, the D.C. Circuit denied rehearing en banc. The District's gun laws remain in effect while the case continues to be litigated. On September 4, 2007, the District of Columbia filed a cert petition asking the U.S. Supreme Court to accept an appeal The Brady Center continues to support the District in the case. The firm of Wilmer, Cutler, Pickering, Hale & Dorr is assisting the Brady Center.
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