Federal Circuit Second Amendment Developments 2017–2018

Abstract

This Article surveys federal circuit court of appeals cases on the Second Amendment from August 1, 2017, through July 31, 2018. The decisions of the last year continue the post-Heller approach of upholding all provisions of the Gun Control Act of 1968 and of the National Firearms Act of 1934. As usual, the prohibited persons cases were easy under Heller and post-Heller circuit doctrine. However, one case was too glib, and earned a dissent: the Sixth Circuit’s decision upholding a lifetime gun ban for a misdemeanor committed decades previously. Restrictions on firearms commerce were easy as applied to unlicensed persons willfully selling arms to sketchy characters. But Fifth Circuit’s decision upholding the ban on handgun sales by federally licensed firearms dealers to residents of consenting other states had questionable reasoning. Far worse was the superficial analysis and shoddy history in the Ninth Circuit’s opinion upholding a county’s ban on all new gun stores. Nullification of the right to bear arms remains a continuing problem in a few states. In the Second Circuit, treating the Second Amendment as a second-class right would actually be an improvement from the current jurisprudence. There, New York City has been allowed to continue its mean-spirited policy of preventing handgun owners in Staten Island from practicing gun safety in New Jersey, prohibiting residents of the Bronx from participating in target competitions in Connecticut, and forbidding New York City residents to take their registered handguns from one home to another. Meanwhile, the Supreme Court failed to act when Ninth Circuit allowed California to nullify the right to bear arms. Hawaii’s similar nullification has been cast into doubt by a recent panel opinion from the Ninth Circuit, but whether that decision will survive en banc is uncertain. Also uncertain in the long term is California’s effort to confiscate standard magazines holding more than ten rounds. For the present, the confiscation is still enjoined. Although residents of the fifty States may not pay much attention to U.S. Territories, the citizens of the Territories are American citizens, and their rights are just as important as other citizens’. Accordingly, the final demise of the racial ban, handgun ban, and self-defense ban in the Commonwealth of the Northern Mariana Islands is a welcome development.

Keywords: Second Amendment, Federal Circuit Courts of Appeal, Right to Keep and Bear Arms

JEL Classification: K14, K23, K42