Recent Trends in Firearm Legislation and Case Law Update

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1 Thank you for joining us today! Recent Trends in Firearm Legislation and Case Law Update July 24, :30pm Central Time Alla Lefkowitz, Senior Staff Attorney, The Brady Center to Prevent Gun Violence This project was supported by Grant No TA AX K052 awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this presentation are those of the authors and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women. The materials are available on our website: AUDIO OPTIONS The audio component can be heard by VoiceoverIP (VoIP) or telephone: VoIP: Select "connect" to internet audio on the Start tab to get your audio streaming through your computer. Telephone: Select I am dialed in on the Start tab and dial in from you telephone. Your standard long distance charges will apply. Dial in: Passcode: AUDIO TROUBLESHOOTING for VoIP Verify you selected connect to the internet audio If your computer & speaker volume are turned all the way up, & volume is too low, run the audio wizard under Tools at the top of your screen. If still low volume, try a headset (which is recommended). Lastly, if all your troubleshooting attempts have failed please dial in from a telephone. Your computer &/or network don t have the requirements (bandwidth, memory, etc) for VoIP on this webinar. RECENT TRENDS IN FIREARM LEGISLATION AND CASE LAW Brady Center to Prevent Gun Violence Legal Action Project Alla Lefkowitz Senior Staff Attorney

2 Agenda Gun Violence in America Federal Gun Laws Background Recent roll back Recent cases Immunity Laws & Liability Cases State Laws Recent legislative trends Recent cases Update on Gun Violence in America On average, 93 people are killed with guns each day 34% homicides; 62% suicide In 2015, over 36,000 people died from guns 12,979 homicides (more than each of the previous 4 years) 22,018 suicides (more than each of the previous 4 years). About 2,000 gun deaths in 2015 were children 18 and under In 2014, about 48 women were fatally shot by intimate partners per month. In 2014, over 81,000 people suffered non-fatal gun injuries (222 per day). Federal Law: Prohibited Gun Purchasers Felons Fugitives Drug Users Adjudicated mental defective or involuntarily committed to mental institution Illegal aliens Dishonorably discharged Renounced U.S. citizenship Restraining Order DV misdemeanants

3 Federal Law: Background Checks Anyone engaged in the business of dealing in firearms must get a license from the federal government and must do background checks. 3 million transactions have been denied via the background check system. Federal law does not require private sellers to do background checks. In 2016, the DoJ issued guidance titled Do I Need a License to Buy and Sell Firearms? in order to help distinguish between private sellers and those engaged in the business. Federal Law: Additional Prohibitions To purchase a handgun from FFL, purchaser must be 21+ Federal minimum age to possess handgun is 18. Federal minimum age for private seller to sell handgun is 18. To purchase a long gun from FFL, purchaser must be 18+ No federal minimum age to possess long gun. No federal minimum age for private seller to sell long gun. A customer can only buy gun for himself or herself (no straw purchasers). Straw purchaser can be prosecuted for lying on the federal transaction form; no explicit straw purchasing or trafficking law. Recent Rollback of Federal Laws In February, the President signed a bill nullifying a rule enacted under the Implementation of the NICS Improvement Amendments Act of 2007 that would have required the Social Security Administration to submit names of disability recipients to NICS who are unable to work due to mental illness & unable to manage financial affairs. DOJ changed the definition of fugitives from justice (a prohibited category) to include three elements: (i) individual must be subject to current or imminent criminal prosecution; (ii) have crossed state lines; and (iii) have does so to avoid prosecution or avoid testifying. Result = 50,000 names removed from NICS Pending bill: Veterans 2 nd Amendment Protection Act would prevent the reporting of at-risk veterans to the background check system.

4 District of Columbia v. Heller (2008) For the first time, SCOTUS recognized an individual right to keep and bear arms under the Second Amendment. [W]hatever else it leaves to future evaluation, [the Second Amendment] surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home. But the Court emphasized that the individual right had limits: Like most rights, the right secured by the Second Amendment is not unlimited. The Second Amendment right is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. Since Heller, courts have been inundated with Second Amendment challenges. Out of > 1,000 challenges, over 90% have been rejected Questions Unanswered by Heller Is there a Second Amendment right to carry guns in public? Is there a Second Amendment right to own assault weapons? Can gun law prohibitions be permanent? What is the appropriate level of scrutiny for analyzing the constitutionality of gun laws? Recent Cases Interpreting the GCA Heller held that nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill. Tyler v. Hillsdale (6th Cir. en banc 2016) Can government permanently prohibit gun ownership by man who was involuntarily committed 30 years ago? Binderup v. Holder (3d Cir. en banc. 2016), cert denied. Can government prohibit gun ownership by non-serious misdemeanants whose crime can be sentenced by >1 year in jail? Voisine v. United States (2016) Supreme Court held that a reckless crime of domestic violence falls under domestic violence prohibition of the GCA.

5 Immunity Laws and Liability Cases The federal Protection of Lawful Commerce in Arms Act ( PLCAA ) requires dismissal of civil lawsuits by gun violence victims against members of the gun industry, unless the lawsuit falls into one of six exceptions. Recent cases that have challenged PLCAA: Norberg and Kunisch v. Badger Guns (Wisconsin 2015) Delana v. CED Sales, Inc. (Missouri 2016) Chiapperini v. Gander Mountain Co. (New York 2014) Soto v. Bushmaster (Connecticut- pending) Many states now have their own State PLCAAs Runnels v. KS&E Sports (Indiana 2017) Recent Trends in State Gun Laws Gun Sense Laws Background checks for private sellers Assault Weapon/High Capacity Magazine Restrictions Concealed Carry Permitting Gun Violence Restraining Orders Gun Rights Laws Expansive public carry Campus carry Guns Everywhere Prohibition on Gun Control education State Preemption Stand your ground Automatic standing for gun rights groups Public Carry Litigation Key Question: Is there a right to carry guns outside the home? Moore v. Madigan (7th Cir. 2012): Rejected complete ban on public carry. Every state and DC allow guns to be carried in public to some extent. Open carry v. Concealed carry No issue v. Shall Issue v. May Issue v. Permitless Some states limit the right to carry guns outside the home to those individuals who have good cause to do so. Circuits Upholding Regulation of Concealed Carry: First, Second, Third, Fourth, Ninth, Tenth. Supreme Court recently declined to take up a concealed carry case out of the Ninth Circuit. D.C. Circuit: Wrenn v. D.C & Grace v. D.C. (pending)

6 Assault Weapon Litigation Heller: The Second Amendment right is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. Heller: Types of weapons protected are those in common use at the time ; recognized historical limitation on dangerous and unusual weapons. Every circuit court that has considered assault weapon and high capacity restrictions has upheld them. Kolbe v. Hogan (4th Cir. 2017): Plaintiffs have until July 21 to file a petition for a writ of certiorari Questions?