Monthly Law Journal Articles: Supreme Court rules that a city’s ban on handguns is unconstitutional, 2010 (7) AELE Mo. L. J. 501.
     During an arrest, officers seized a pistol owned by the arrestee. The weapon was not returned after the prosecution against him was dropped. He claimed that the failure to return his weapon and an alleged prosecutor's policy not to return firearms seized during arrests violated the Second Amendment right to keep and bear arms. A federal appeals court rejected these claims, since the "right protected by the Second Amendment is not a property-like right to a specific firearm." The plaintiff did not show that the defendants interfered in any way with his right or ability to obtain or retain other firearms. The court also found no violation of due process, since there were adequate remedies under state law for any wrongful withholding of personal property. Houston v. City of New Orleans, #11-30198, 2012 U.S. App. Lexis 5370 (5th Cir.),
     A man active in advocating the right to carry concealed firearms in public openly carried a holstered handgun into retail stores on two occasions. Both times, he was arrested for disorderly conduct and had his gun confiscated. He was not prosecuted and each time his gun was eventually returned. He claimed that his conduct was not disorderly and was protected under the federal and state constitutions. The officers were entitled to qualified immunity on unlawful arrest claims. The officers could not have anticipated that the U.S. Supreme Court would subsequently issue Second Amendment opinions raising an issue about whether his conduct was lawful and were not required to balance alleged firearms rights under the Wisconsin state constitution against the disorderly conduct law. The officers also were not liable for violating the plaintiff's rights under the federal Privacy Act by requesting his Social Security number during one of the incidents, since it was not clearly established that they had to inform him whether the disclosure of his Social Security number was voluntary or mandatory, and they had not denied him any "right, benefit, or privilege" based on his refusal to disclose the number. The court also rejected claims for unlawful seizure of his property, the handgun. Gonzalez v. Village of West Milwaukee, #10-2356, 2012 U.S. App. Lexis 1965 (7th Cir.).
     An officer stopped a motorist and took him into custody on an outstanding arrest warrant. In the course of the arrest, the officer retrieved the man's legally purchased and licensed handgun from his vehicle and confiscated it. The charges against the arrestee are later dropped, but the arrestee is told that his gun will not be returned and that he should go to court to seek a replevin order if he wants it. The initial seizure of the gun pursuant to a valid arrest was not a violation of due process, but the court rules that the subsequent refusal to return the weapon with no legal grounds to support it could form the basis for a valid due process claim. When "an established state procedure deprives one of property, post-deprivation remedies generally fail to satisfy" due process requirements. The court also holds, however, that the city could not be held liable for a violation of the Second Amendment, since that "confers a right only to keep and bear arms generally, not a right to possess a particular firearm." Walters v. Wolf, #10-3597, 660 F.3d 307 (8th Cir. 2011).
      The operators of gun shows brought a lawsuit, challenging, on Second Amendment grounds, a county ordinance that prohibited bringing firearms or ammunition onto county property, effectively prohibiting gun shows that had previously been held at the county's public fairgrounds. A federal appeals court held that heightened scrutiny does not apply to Second Amendment claims unless the government regulation in question "substantially burdens" the right to keep and bears arms.
     In this case, the mere refusal of the county to allow the use of its property to facilitate the exercise of a Second Amendment right did not constitute a "substantial burden." In light of the fact that the complaint was initially drafted before several recent important U.S. Supreme Court decisions on Second Amendment rights, however, the court ruled that the plaintiff should have the opportunity to amend their complaint to attempt to present a viable Second Amendment claim. Nordyke v. King, #07-15763, 2011 U.S. App. Lexis 8906 (9th Cir.).
    Having previously found a Second Amendment individual right to bear arms in striking down a handgun ban in the federal District of Columbia, the U.S. Supreme Court has extended that ruling, in a case involving a handgun ban by the City of Chicago. By 5-4, the Court held that the rights guaranteed by the Second Amendment also apply to the states and their subdivisions through the Fourteenth Amendment. McDonald v. City of Chicago, #08-1521, 2010 U.S. Lexis 5523.
     Editor's Note: Anticipating that the U.S. Court of Appeals for the Seventh Circuit, asked to consider the Chicago handgun ban on remand in light of this ruling, would strike down the Chicago handgun ban, Chicago days later enacted a new handgun ordinance allowing the purchasing and registering of one handgun per month for every adult resident of a household, while setting forth certain city licensing, registration, and training requirements, as well as restricting possession to one functioning loaded handgun in the home, with restrictions on transport. The revised ordinance also bans gun shops and firing ranges in the city, and prohibits the transfer of weapons within the city except through inheritance. A lawsuit challenging provisions of the new ordinance was filed in federal court days later. See Benson v. City of Chicago, #10-cv-04184, (N.D, Ill. July 6, 2010).
     Officers delayed, and in some instances arrested travelers for violating New York state gun laws when they tried to send unloaded guns in checked baggage through various New York airports. The travelers argued that they were entitled to do so under 18 U.S.C. Sec. 926A, which authorizes such transport in certain circumstances, and declares that such transport shall not constitute a violation of local gun laws. In a federal civil rights lawsuit over the issue, an appeals court has held that Sec. 926A cannot be enforced under 42 U.S.C. Sec. 1983. The application of the statute in particular circumstances was complex and uncertain. Under the facts and circumstances of the arrests, the officers acted in an objectively reasonable manner in believing that they had probable cause to arrest for a violation of state gun laws, and that the requirements of the federal statute were not met. Torraco v. Port Authority of New York and New Jersey, #08-1895, 2010 U.S. App. Lexis 13379 (2nd Cir.).
     A traveler was arrested at a New Jersey airport by Port Authority of New York and New Jersey police for violating New Jersey gun laws by possessing a handgun and ammunition. The traveler, who had flown to New Jersey from Utah, had a handgun and ammunition in separate locked cases in his checked luggage. Because of a delay, he had to stay overnight in a hotel in New Jersey, and he retrieved his checked luggage before doing so. The next day, when he attempted to fly on to his destination in Pennsylvania, the gun and ammunition were detected during x-raying and he was arrested. He had declared the presence of the gun and ammunition when checking his bags in Utah, where he was licensed for the weapon. He sued for false arrest, claiming that the arrest was unlawful under 18 U.S.C. Sec. 926A, which allows a licensed gun owner to travel from one state through a second, en route to a third, provided that he is licensed to carry the weapon in the first and third state and that it is not readily accessible to him during transport, such as checked in luggage, or locked in a compartment in a vehicle. Upholding summary judgment for the defendants, a federal appeals court found that the plaintiff's conduct did not meet the requirements of the federal statute, since he retrieved his luggage containing the gun and ammunition before going to his New Jersey hotel, and had with him the keys to the locked containers, making the gun and ammunition readily accessible to him, whether or not he actually accessed them. Revell v. Erickson, #09-2029, 598 F.3d 128 (3rd Cir. 2010).
     An intermediate Colorado appeals court reinstated a lawsuit challenging a state university policy banning the carrying of concealed weapons on campus by students who have state concealed gun permits. The lawsuit contends that the policy violates state law, including the state constitutional provision providing an individual right to keep and bear arms. The court noted in its opinion that nothing in the statute specifies public university campuses as an exception to the concealed gun permits. Students for Concealed Carry on Campus, LLC v. Regents of the University of Colorado, #09-CA-1230, 2010 Colo. App. Lexis 541.
     The North Carolina Supreme Court held that retroactively applying a 2004 state law barring convicted felons from owning or possessing firearms violated the rights of a man convicted of felony drug possession with intent to sell and deliver whose right to possess firearms was restored in 1987 by operation of law after he completed his sentence. The court found that the application of the statute to the plaintiff was an "unreasonable regulation not fairly related to the preservation of public peace and safety," especially in light of the "absence of any exception or possible relief from the statute's operation as applied to the plaintiff." The plaintiff, the court found, does not pose a threat to public peace and safety, in light of his thirty years of law-abiding conduct, his "uncontested lifelong nonviolence toward other citizens," and his compliance in giving up his weapon when informed of the 2004 statute. The court held that this application of the statute violated the right to bear arms guaranteed by the state constitution. Britt v. North Carolina, #488A07, 2009 N.C. Lexis 815. Editor's Note: While federal law generally prohibits, among other things, the purchase or possession of firearms by felons, there is an exception for those whose civil rights have been restored by a state on the predicate state felony conviction. 18 U.S.C. 921(a)(20), in defining terms for the purposes of federal firearms law, provides that: "What constitutes a conviction of such a crime [a felony] shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms."
     The state of Montana has enacted a law, effective October 1, 2009, entitled the Montana Firearms Freedom Act, Ch. 205, Title 30 Mont. Code Annotated, that purports to exempt from all federal firearms regulations, including registration, background checks, and firearms dealer licensing, firearms and ammunition made and retained within the state. The statute asserts the Second, Ninth, and Tenth Amendments as authority for the legislation, as well as the compact entered into between Montana and the U.S. government when Montana became a state in 1889. A similar statute was recently enacted in Tennessee, and similar proposed statutes have been introduced in five other states. The federal Bureau of Alcohol, Tobacco, Firearms and Explosives has taken the position that the Montana legislation violates federal firearms laws and regulation, and that federal law supersedes it. The Second Amendment Foundation, a national gun rights group, together with a Montana group, has announced plans to file suit on October 1, 2009 to seek a court order against the enforcement of federal firearms laws against firearms and ammunition covered by the Montana statute. The Montana statute states that it does not apply to firearms that cannot be carried and used by one person, firearms with a bore diameter greater than 1½ inches and uses smokeless powder, ammunition that uses exploding projectiles or fully automatic weapons.
     Update: As previously reported, a federal appeals court ruled that the rights guaranteed by the Second Amendment apply to the states because they are incorporated by the due process clause of the Fourteenth Amendment, but that the Second Amendment does not guarantee a right to possess guns on government property. The case involved an ordinance banning firearms at a public fairground. This was the only federal appeals court decision to date applying the Second Amendment to the states through the Fourteenth Amendment. Nordyke v. King, #07-15763, 2009 U.S. App. Lexis 8244 (9th Cir.). The U.S. Court of Appeals for the Ninth Circuit has now granted a rehearing en banc in the case, and stated in the order that the original opinion by the three-judge panel "shall not be cited as precedent by or to any court of the Ninth Circuit." Nordyke v. King, #07-15763, 2009 U.S. App. Lexis 16908 (9th Cir.).
     Residents of Iowa who were denied applications for nonprofessional permits to carry pistols claimed that these denials, by a county sheriff and his successor, violated their Second and Fourteenth Amendment rights, because no justification was provided and they met all statutory requirements for the permits. The court dismissed the "sheriff's department" as a defendant, since it was not a legal entity under state law, and the statute gave only the sheriff power and discretion to decide whether to issue the permits in question. Claims against the sheriff's "successors" were also dismissed. Dorr v. Weber, #08-4093, 2009 U.S. Dist. Lexis 59110 (W.D. Iowa).
     A federal appeals court has rejected a Second Amendment constitutional challenge to two municipalities' handgun bans, ruling that the individual right to bear arms that the U.S. Supreme Court has held is protected by the Second Amendment applies only to the federal government, and is not "incorporated" by the Fourteenth Amendment to apply to the states and municipalities. It held that any decision to apply the Second Amendment in that fashion must be made by the U.S. Supreme Court. The plaintiffs in the case have filed a petition seeking U.S. Supreme Court review of the decision. Nat'l Rifle Ass'n of Am. v. City of Chicago, No. 08-4241, 2009 U.S. App. Lexis 11721 (7th Cir.), petition for certiorari filed June 3, 2009.
     An intermediate Pennsylvania appeals court has upheld an injunction barring a city from enforcing two ordinances prohibiting the possession, sale, and transfer of certain types of guns, including assault weapons, and prohibiting purchase of a handgun through a straw purchaser. State law regarding weapons, the court ruled, has the effect of denying municipalities in the state power to regulate guns. The court also upheld the trial court's finding that the plaintiffs lacked standing to challenge three other ordinances which authorize temporary removal of guns when a person poses a risk of imminent harm, requiring notice from the owners of lost or stolen guns, and barring persons subject to an abuse order from possessing or acquiring guns. National Rifle Association v. City of Philadelphia, #1305 C.D. 2008, 2009 Pa. Commw. Lexis;
    Gun show promoters failed to show that an ordinance prohibiting the presence of firearms on county property violated their Second Amendment or First Amendment rights. The federal appeals court ruled that the rights guaranteed by the Second Amendment apply to the states because they are incorporated by the due process clause of the Fourteenth Amendment, but that the Second Amendment does not guarantee a right to possess guns on government property. The county could regulate gun possession in sensitive public spaces, and its actions did not violate the promoters' right to self-defense. Even if the holding of a gun show was expressive conduct, the county ordinance was not intended to suppress speech, and the desire to reduce gun violence was a reasonable basis for the law. Finally, the appeals court rejected an equal protection claim based on an argument that the ordinance unequally applied to the possession of guns for promoters holding a gun show and possession of guns for "entertainment" purposes. The court found that entertainment events were not similarly situated to gun shows, as they involved safety measures that the gun show promoters couldn't meet. Nordyke v. King, No. 07-15763, 2009 U.S. App. Lexis 8244 (9th Cir.).
     In a lawsuit challenging, on Second Amendment grounds, the constitutionality of a New York State statute criminalizing the possession of nunchakus in the home, a federal appeals court held that the Second Amendment does not apply to the states, but only limits the actions of the federal government. The court also rejected a Fourteenth Amendment substantive due process claim concerning the statute, holding that the ban at issue was supported by a rational purpose, since the items at issue were designed as weapons, with no use other than to maim or kill. Maloney v. Cuomo, Docket No. 07-0581, 2009 U.S. App. Lexis 1402 (2nd Cir.).
     Court upholds police commissioner's revocation of New York man's pistol license based on his transport of the handgun to Nevada for a gun convention, when the license only allowed the transport of the gun to authorized hunting areas, and to small arms ranges or shooting clubs. The court rejected the gun owner's argument that his actions were authorized by the Firearms Owners' Protection Act (FOPA), 18 U.S.C. Sec. 926A, allowing the transporting of guns for any lawful purpose between two locations where the gun could lawfully be possessed and carried. The FOPA did not apply because the license did not authorize the lawfully carrying of the gun on the trip to another state. Beach v. Kelly, No. 4012, 113372/06, 2008 N.Y. App. Div. Lexis 5675 (A.D. 1st Dept.).
     The U.S. Supreme Court, by a 5-4 vote, ruled that a D.C. ordinance banning handgun possession and requiring that lawfully owned firearms be kept unloaded or bound by a trigger lock violates the Second Amendment. The Court found an individual constitutional right to possess a firearm for use for lawful purposes, such as self-defense within the home. District of Columbia v. Heller, No. 07-290, 2008 U.S. Lexis 5268.
    Federal appeals court rules that the Second Amendment to the U.S. Constitution protects the right of an individual to keep and bear firearms, and that exercise of that right is not limited to persons enrolled in a state militia or National Guard unit. Court reinstates lawsuit seeking to challenge D.C. laws prohibiting the registration of handguns, requiring a license to carry a pistol, and mandating that all firearms lawfully owned in the District be contained in a trigger lock or else be kept disassembled and unloaded. Parker v. D.C., No. 04-7041, 478 F.3d 370 (D.C. Cir. 2007).
     City and police officers did not violate an arrestee's Second Amendment right to bear arms or his Fourteenth Amendment right to due process before being deprived of his property when his handgun was taken away during his arrest for various criminal charges, and was subsequently destroyed on court order. The court noted that the confiscation of one weapon did not infringe on the arrestee's right to lawfully acquire another weapon, and that the arrestee was provided with notice of the court hearing regarding the disposition of his pistol, and was in attendance at the court proceeding at which theorder for its destruction was issued. Garcha v. City of Beacon, No. 04 CIV.5981, 351 F. Supp. 2d 213 (S.D.N.Y. 2005). [N/R]
     278:26 Even though state police violated Maryland state law in turning down, on the basis of past arrests, woman's application to purchase handgun, applicant could not collect damages for violation of federal civil rights; state law remedies were adequate and federal appeals court rules that Second Amendment does not apply to the states Love v. Peppersack, 47 F.3d 120 (4th Cir. 1995).