December 6, 2010
OLR BACKGROUNDER: STATE GUN LAWS AFTER HELLER AND MCDONALD
By: Veronica Rose, Chief Analyst
Are any Connecticut gun laws likely to be struck down on 2nd Amendment grounds in light of the U.S. Supreme Court holdings in District of Columbia v. Heller, 128 S. Ct. 2783 (2008) and McDonald v. Chicago, 130 S. Ct. 3020 (2010)?
This office is not authorized to give legal opinions and this report should not be considered as such.
Whether any Connecticut gun laws are likely to be struck down on 2nd Amendment grounds in light of Heller and McDonald is a matter for the courts to decide. We cannot provide a definitive answer to the question because the U.S. Supreme Court did not provide clear guidance in either case and left unresolved significant questions about the U.S. Constitution 2nd Amendment's scope and application to firearm regulation.
In Heller, the Court struck down a District of Columbia (D.C.) law that effectively banned handguns on the grounds that the law violated an individual's 2nd Amendment right to possess firearms for lawful use such as self-defense in one's home. The decision was considered a federal measure that applied only in federal jurisdictions. Faced with a similar Chicago gun ban in McDonald, the Court did not rule on the constitutionality of the ban, deciding instead to reverse and remand the case for additional proceedings. But the Court's decision on the 2nd Amendment makes it clear that such bans are unconstitutional in states and cities, not just federal jurisdictions.
While the Court made it clear that an outright handgun ban is unconstitutional, it said that some firearm regulation is constitutionally permissible in that the 2nd Amendment does not confer a right to possess any firearm, anywhere, and for any purpose. The Heller Court provided a list of “presumptively lawful” regulations, noting that the list is not exhaustive. But neither Heller nor McDonald set criteria for determining what laws would meet this standard.
Connecticut law, unlike the legislation challenged in Heller and McDonald, does not ban handgun possession, but it contains many firearm restrictions and prohibitions that some contend are susceptible to a 2nd Amendment challenge. While we cannot say how courts would rule on these Connecticut restrictions, rulings in other jurisdictions may provide some guidance. Since Heller, courts have found the following laws among others are consistent with the 2nd Amendment: (1) federal statutes prohibiting firearm possession by people convicted of felonies and domestic violence misdemeanors and (2) state and local laws requiring gun registration, banning assault weapons, and banning the carrying of unlicensed concealed weapons, according to a recent report by the Legal Community Against Violence (LCAV) (Post-Heller Litigation Summary, updated September 20, 2010). Courts have upheld challenges to California's assault weapons ban, New Jersey's law authorizing firearm seizure in domestic violence cases, and a New York licensing requirement for handguns.
This OLR report briefly summarizes Heller and McDonald and discusses (1) the difficulties in determining the likely ramifications of these cases on Connecticut gun laws and (2) the outcomes of some post-Heller litigation. Our discussion of the litigation is based largely on the LCAV report cited above.
In Heller, the U.S. Supreme Court held that the 2nd Amendment protects an individual right to possess firearms for lawful use, such as self-defense, in the home. Accordingly, it struck down as unconstitutional provisions of a D.C. law that (1) effectively banned possession of handguns by non-law enforcement officials and (2) required lawfully owned firearms to be kept unloaded, disassembled, or locked when not located at a business place or being used for lawful recreational activities.
The ban on handgun possession in the home amounted to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense, according to the Court. Similarly, the requirement that any firearm in a home be disassembled or locked made it impossible to use arms “for the core lawful purpose of self-defense.” Though not using a specific standard to analyze the D.C. law, the Court said the law was unconstitutional “under any of the standards of scrutiny the Court has applied to enumerated constitutional rights.”
Because D.C. is under federal jurisdiction, the Heller decision was considered a federal measure that applied only in federal jurisdictions. McDonald (summarized below) decided the 2nd Amendment's applicability to states and local jurisdictions.
For a more complete discussion of Heller, see OLR Report 2008-R-0578.
The Chicago ordinances challenged in McDonald were substantively similar to the ones struck down in Heller. They banned possession of unregistered firearms within the city limits (Chicago, Ill., Municipal Code § 8-20-040(a)). But the Chicago code prohibited registration of most handguns (Chicago, Ill., Municipal Code § 8-20-050(c)). It thus effectively banned handgun possession by almost all private citizens living in the city.
The central question before the McDonald Court was whether the right to bear arms was a fundamental constitutional right and therefore applicable to states. In a five-four split decision, the McDonald Court held that an individual's 2nd Amendment right to keep and bear arms applies to state and local gun control laws through the 14th Amendment's Due Process Clause.
The Court did not rule on the constitutionality of the Chicago gun ban, deciding, instead, to reverse and remand the case for reconsideration. But, its decision on the 2nd Amendment made it clear that such bans are unconstitutional. And, as the Court held in Heller, it reiterated in McDonald that (1) the 2nd Amendment only protects a right to possess a firearm in the home for lawful uses such as self-defense; (2) some firearm regulation is constitutionally permissible; and (3) the 2nd Amendment right to possess firearms is not unlimited, in that it does not guarantee a right to possess any firearm, anywhere, and for any purpose.
For a more complete discussion of McDonald, see OLR Report 2010-R-0314.
RAMIFICATIONS OF HELLER AND MCDONALD
Opinion is divided on the likely ramifications of Heller and McDonald on gun regulation. Some commentators have said that absent a total gun ban, reasonable regulations should survive constitutional scrutiny. Others, including the National Rifle Association and the 2nd Amendment Foundation, argue that many gun laws are likely to fail a 2nd Amendment challenge.
Laws cited as susceptible to challenge include those that (1) set a 21-year age limit for buying and possessing guns, (2) require trigger-locks for gun storage, (3) ban assault weapons, and (4) authorize firearm seizure in domestic violence cases.
Two main reasons for the divided opinion are that the Court (1) left unanswered many questions as to what is “presumptively lawful” under the 2nd Amendment when it comes to firearm regulation and (2) did not say what standard of review courts should use in deciding future gun cases.
“Presumptively Lawful” Activities
In both Heller and McDonald, the Court said that the 2nd Amendment right is not absolute and that a wide range of gun control laws remain “presumptively lawful,” including laws that (1) prohibit carrying concealed weapons, (2) prohibit gun possession by felons or the mentally retarded, (3) prohibit carrying firearms in sensitive places such as schools and government buildings, (4) impose “conditions and qualifications on the commercial sale of arms,” (5) prohibit “dangerous and unusual weapons,” and (6) regulate firearm storage to prevent accidents. But the Court left unanswered (1) what is permissible under those restrictions, including what types of firearms, other than handguns, are covered and (2) the limits on firearm possession outside the home.
The McDonald Court held that the Chicago ordinances would violate any of the standards of review (strict scrutiny, intermediate scrutiny, or rational basis) courts employ when determining the constitutionality of legislation. But neither Heller nor McDonald indicated the appropriate standard courts should use in deciding future cases.
Traditionally, courts employ strict scrutiny, the most stringent test, when a law infringes on a fundamental constitutional right or involves the use of a suspect classification, such as race or ethnicity. To pass the strict scrutiny test, the law must serve a compelling government interest; be narrowly tailored to achieve that interest; and be the least restrictive means of achieving that interest. To pass intermediate scrutiny, a law must be substantially related to serving an important government interest. To pass the rational basis test, a law must be rationally related to furthering a legitimate government interest. This is the lowest standard of review and the one to which most constitutional challenges are subject.
In light of the above issues, we are unable to say how Heller and McDonald could affect Connecticut gun laws.
CONNECTICUT GUN LAWS
Connecticut's gun laws are among the nation's most stringent, by some accounts. (For a summary of Connecticut gun laws, see OLR Report 2007-R-0369.) With a score of 54 out of a possible 100, Connecticut tied for third with Massachusetts among states with the strongest gun laws in a 2009 report published by the Brady Campaign to Prevent Gun Violence. (The report is available at http://www.bradycampaign.org/stategunlaws.)
Among other things, Connecticut:
1. requires people to have a permit to carry a handgun, openly or concealed, and gives permit-issuing officials discretion in issuing it, based on their determination of an applicant's suitability to possess handguns (CGS §§ 29-35(a) and 29-28(b));
2. with one minor exception, prohibits transferring a handgun to anyone under age 21 (CGS § 29-34(b));
3. prohibits a wide range of individuals from possessing firearms, including felons, people convicted of specified misdemeanors, and people discharged from custody in the preceding 20 years after a finding of not guilty of a crime on mental health grounds (CGS §§ 53a-217, 53a-217c);
4. requires a person whose firearm is lost or stolen to report the incident to the police within 72 hours after he or she discovered or should have discovered the loss or theft (CGS § 53-202g);
5. requires machine guns to be registered with the Department of Public Safety (CGS § 53-202(g)); and
6. with minor exceptions, bans assault weapons (CGS § 53-202c).
These laws are typical of the kinds of laws that the gun literature suggests could be challenged on 2nd Amendment grounds. Whether they or any other Connecticut gun laws are likely to be struck down in light of Heller and McDonald, we cannot say. But it is worth noting that prior to Heller, the Connecticut Supreme Court upheld some of these laws. For example, the Court upheld the assault weapons ban, stating that it does not violate the state constitutional right to bear arms, in that “the constitution does not guarantee the right to possess any weapon of the individual's choosing for use in self defense. [And] as long as our citizens have available to them some types of weapons that are adequate reasonably to vindicate the right to bear arms in self-defense, the state may proscribe the possession of other weapons. . .” (Deforest H. Benjamin Jr., et al v. John M. Bailey, et al (234 Conn. 455, (1995) at 465, 466).
Since Heller, several 2nd Amendment challenges to firearm regulation in various jurisdictions have involved some of the prohibitions and requirements in Connecticut statutes described above. We discuss some of these below.
POST HELLER AND MCDONALD LAWSUITS
Since Heller, numerous lawsuits, criminal and civil, have challenged a wide range of firearm regulation on 2nd Amendment grounds. The courts have upheld most as constitutional, according to LCAV.
Federal Lawsuits. According to LCAV, most post-Heller criminal lawsuits have involved attempts by criminal defendants to challenge their indictments under a wide range of firearm regulations. But courts have found several federal gun statutes consistent with the 2nd Amendment. These include statutes prohibiting firearm possession (1) by people convicted of felonies and domestic violence misdemeanors, (2) while committing another crime, (3) in violation of a court order, or (4) in a prohibited location.
For example, a federal court rejected a 2nd Amendment challenge to many of D.C.'s post-Heller laws, including a ban on assault weapons and high capacity ammunition magazines, a one-handgun–a-month law, and the requirement that gun owners report lost or stolen guns. But some courts, albeit a minority, have disagreed about a federal law prohibiting possession of firearms by anyone convicted of a “misdemeanor crime of domestic violence” (see United States v. Chester, 2010 U.S. App. LEXIS 3739 (4th Cir. Feb. 23, 2010) (unpublished)) and In re United States, F.3d 1195 (10th Cir. 2009)).
State Lawsuits. According to LCAV, post-Heller courts have found that several state and local gun laws are consistent with the 2nd Amendment. These include laws requiring gun registration; banning assault weapons; and banning the carrying of unlicensed, concealed weapons. While some state courts dismissed firearm challenges before the Supreme Court's ruling in McDonald on the ground that the 2nd Amendment did not apply to the states, others have held that even if it applies, the statutes at issue are permissible exercises of a jurisdiction's police power to regulate firearms.
The report noted that state courts have affirmed New Jersey's law authorizing the seizure of firearms in domestic violence cases (Crespo v. Crespo, 989 A.2d 827 (N.J. 2010); California's ban on possession of assault weapons and 50-caliber rifles (People v. James, 174 Cal. App. 4th 662 (Cal. App. 3rd Dist. (June 2, 2009)); and New York's requirement that an individual possess a license to own a handgun (People v. Perkins, 880 N.Y.S.2d 209 (N.Y. App. Div. (May 21, 2009)).
According to LCAV, as of September 20, 2010, there were 25 pending lawsuits challenging various firearm laws under the 2nd Amendment, including three challenging the Chicago ordinance adopted in response to McDonald. The revised Chicago ordinance (1) prohibits gun dealers within city limits and handguns outside the home, (2) allows only one handgun in the home, (3) restricts firearms in homes with children (4) requires firearms to be permitted and registered, and (5) requires training as a condition of owning firearms (Municipal Code of Chicago §§ 8-20-10 through 8-20-260).
The report also noted that 2nd Amendment challenges by civil plaintiffs have been largely unsuccessful, but state courts have cited Heller in expressing concern about state action that would limit an individual's right to possess a firearm where that person is otherwise lawfully able to do so.
● District of Columbia v. Heller, http://www.supremecourt.gov/
● McDonald v. Chicago, http://www.supremecourt.gov/opinions/09pdf/08-1521.pdf
● Post-Heller Litigation Summary, http://www.lcav.org/content/post-heller_summary.pdf
● For a more complete discussion of Heller, see OLR Report 2008-R-0578, http://cga.ct.gov/2008/rpt/2008-R-0578.htm
● For a more complete discussion of McDonald, see OLR Report 2010-R-0314, http://cga.ct.gov/2010/rpt/2010-R-0314.htm
● For a summary of Connecticut gun laws, see OLR Report 2007-R-0369, http://cga.ct.gov/2007/rpt/2007-R-0369.htm