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7airportâs decision to prohibit the possession of fire- arms in the airport does not contravene a clearly established constitutional right. II. FEDERAL CONSTITUTIONAL RIGHT TO BEAR ARMS AND RECENT CASES A. The United States Supreme Courtâs Decision in District of Columbia v. Heller An analysis of the statesâ authority to restrict or prohibit an individualâs possession of a firearm in an airport must begin with the nonairport-related deci- sion in 2008 by the United States Supreme Court in District of Columbia v. Heller.15 In Heller, the Court invalidated District of Columbia gun control laws on the ground that they violated the Second Amend- ment to the United States Constitution.16 1. A New but Limited Constitutional Right? In Heller, although there were some exceptions to the District of Columbia laws at issue, the laws com- pletely prohibited the carrying of handguns in the District. Although the chief of police could issue a license for 1-year periods, the laws criminalized the carrying of a handgun without a license. Residents had to keep their lawfully owned firearms, such as registered long guns, âunloaded and disassembled or bound by a trigger lock or similar deviceâ unless they were located in a place of business or in use for lawful recreational activities.17 In a 5â4 decision, the Court held that the Districtâs laws violated the Second Amendment because the District had banned handgun possession in the home completely and, moreover, required that any lawful firearm in the home had to be disassembled or bound by a trigger lock at all times, thereby rendering it inoperable.18 The Court held that the Constitution protects an individualâs right to keep and bear arms in the home for self-defense; thus, the District of Columbia had to permit Heller to register his handgun and to issue a license to him to carry it in his home.19 Although there is precedent that âthe Second Amendmentâ¦was intended to address the distribu- tion of military power in society, not the need to have guns for self-defense or other private purposes,â20 the Heller Courtâs interpretation of the Second Amendment âis not limited to a military context.â21 In contrast, in 1939, a unanimous Court in United States v. Miller22 held âthat the âobvious purposeâ of the guarantee of the peopleâs right to âkeep and bear Armsâ was âto assure the continuation and render possible the effectivenessâ of state militia forces and that the Amendment âmust be interpreted and applied with that end in view.ââ23 It has been argued that by eliminating any mili- tary nexus in the Second Amendment to firearm possession, the Heller Court created âa new Consti- tutional right to be armedâ;24 more specifically, âa constitutional right to have and use a gun for self-defense, at least in the home.â25 In McDonald v. Chicago in 2010,26 the Court held that its decision in Heller applies to the states. 2. Confrontation Outside the Home and the Right To Be Armed As held in Heller, there is a constitutional right to have a gun in the home because one may confront someone with the intent to do harm and need a fire- arm for self-defense. Since the Heller decision, there is still an issue of whether and the extent to which one has a right to carry a firearm in various places outside the home where there could be a confronta- tion that possibly necessitates a firearm for self- defense.27 In Heller, writing for a majority of the Court, Justice Scalia stated that 15 554 U.S. 570, 628 (2008). 16 D.C. Code Â§Â§ 7-2501.01(12), 7-2502.01(a), 7-2502.02(a) (4) (LexisNexis 2001). No one could carry a handgun with- out a license, but the chief of police could issue licenses for 1-year periods. D.C. Code Â§Â§ 22-4504(a), 22-4506 (LexisNexis 2001). 17 D.C. Code Â§ 7-2507.02(a) (LexisNexis 2001). See George A. Nation, The New Constitutional Right to Guns: Exploring the Illegitimate Birth and Acceptable Limita- tions of this New Right, 40 rutgers L.J. 353, 355 (2009) (footnotes omitted). 18 Brian Shupak, Annual New York State Constitutional Issue: Second Amendment: Supreme Court of New York Appellate Division, Third Department, 26 touro l. rev. 787, 789 (2010) (citing Heller, 554 U.S. at 635â36). 19 Heller, 554 U.S. at 635. See Matthew Bridge, Exit, Pursued by a âBearâ? New York Cityâs Handgun Laws in the Wake of Heller and McDonald, 46 Colum. J.l. & soC. proBs. 145, 148 (2012) (footnote omitted). 20 Dennis A. Henigan, The Second Amendment and the Right to Bear Arms After D.C. v. Heller: The Heller Paradox, 56 UCLA L. rev. 1171, 1173 (2009) (citations omitted). 21 Nation, supra note 17, at 358 (footnote omitted). 22 307 U.S. 174 (1939). 23 Henigan, supra note 20, at 1173 (quoting Miller, 307 U.S. at 178). 24 Id. at 1175. 25 Nation, supra note 17, at 399. 26 561 U.S. 742, 791 (2010) (striking down bans on the possession of handguns by Chicago and Oak Park, Illinois). 27 Henigan, supra note 20, at 1198 (arguing that the Heller case could be construed to mean that an individual has a constitutional right to carry a weapon to be ready for a confrontation in any situation).
8[a]lthough we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and govern- ment buildings, or laws imposing conditions and qualifica- tions on the commercial sale of arms.28 Justice Scaliaâs discussion of gun control laws and their continued viability supports the view that a majority of the justices deciding the Heller case believed that âthe right to possess handguns in the home is materially differentâ than in other places.29 Although the Second Amendment now means that an individual has a right to a firearm âin defense of hearth and home,â the opinion in Heller provides âlittle guidance on restrictions regarding the posses- sion of handguns outside the home, or on the types of firearms (other than handguns) that are constitu- tionally protected.â30 B. Whether Gun Control Laws Are Presumptively Constitutional Based on Justice Scaliaâs discussion of the Second Amendment and gun control laws, it appears that such laws presently are âpresumptively lawful.â31 The Court in Heller neither states that there is a right to keep and carry any weapon in any manner for any purpose, nor ââread[s] the Second Amend- ment to protect the right of citizens to carry arms for any sort of confrontation.ââ32 Another reason that laws regulating the owner- ship and possession of firearms may withstand con- stitutional challenges is that the opinion in Heller did not apply a standard of strict scrutiny to the District of Columbia laws under review or imply that the standard of strict scrutiny applies to other gun control laws that the opinion noted.33 If the judi- cial test of strict scrutiny were to be applied, it would be more difficult for a gun control law or regulation to survive a Second Amendment challenge: âThe strict scrutiny test traditionally requires that laws infringing upon certain core rights be justified by a âcompellingâ government interest that is furthered by ânarrowly tailoredâ meansâi.e., means that are no more restrictive than necessary to achieve the government interest.â34 Likewise, state supreme courts when deciding cases requiring a constitu- tional analysis of laws regulating firearms âhave consistently applied a âreasonable regulationâ stan- dard thatâ¦is deferential to the government.â35 A decision in June 2015 by the Ninth Circuit in Jackson v. City of San Francisco,36 however, created, in the words of Justice Thomas, a certain âtensionâ with the Courtâs opinion in Heller. In Jackson, the Ninth Circuit affirmed a district courtâs denial of a preliminary injunction in a case in which six San Francisco residents who keep handguns in their homes challenged Section 4512 of the San Francisco Police Code.37 Section 4512 states: No person shall keep a handgun within a residence owned or controlled by that person unlessâ¦the handgun is stored in a locked container or disabled with a trigger lock that has been approved by the California Department of Justiceâ¦ [and] [t]he handgun is carried on the person of an individ- ual over the age of 18 [or] under the control of a person who is a peace officer under [California law].38 The Ninth Circuit held that the San Francisco law served âa significant government interest by reduc- ing the number of gun-related injuries and deaths from having an unlocked handgun in the homeâ and was âsubstantially relatedâ to that interest.39 The Supreme Courtâs denial of a petition for a writ of certiorari prompted Justice Thomas to write a dis- sent in which he was joined by Justice Scalia. Justice Thomas stated that the Ninth Circuit in Jackson âreadily acknowledged that Â§ 4512 âburdens the core of the Second Amendment rightââ because â[h]aving to retrieve handguns from locked containers or remov- ing trigger locks makes it more difficult âfor citizens to use them for the core lawful purpose of self-defenseâ in the home.â40 The Justice argued that the Court should have granted the petition because the Ninth Circuitâs decision was âin serious tension with Heller.â41 Justice Thomas further argued that the law burdens the peti- tionersâ right to self-defense when they are the most vulnerable, such as âwhen they are sleeping, bathing, changing clothes, or otherwise indisposed.â42 Although 34 Adam Winkler, Scrutinizing the Second Amend- ment, 105 miCh. l. rev. 683, 691 (2007). 35 Nation, supra note 17, at 404 (citing Winkler, supra note 34, at 717â18). 36 135 S. Ct. 2799, 2800 (2015) (Thomas, J., dissenting). 37 See Jackson v. City of S.F., 746 F.3d 953 (9th Cir. 2014), cert. denied, 135 S. Ct. 2799 (2015). 38 S.F. poliCe Code, art. 45, Â§Â§ 4512(a), (c) (2015). 39 Jackson, 746 F.3d at 966. 40 Jackson, 135 S. Ct. at 2800 (Thomas, J., dissenting) (quoting Jackson, 746 F.3d at 953). 41 Id. at 2800 (Thomas, J., dissenting). 42 Id. 28 D.C. v. Heller, 554 U.S. 570, 627 (2008) (footnote omit- ted) (emphasis added). 29 Henigan, supra note 20, at 1177 (citing Heller, 554 U.S. at 577â78); Id. at 1198. 30 Bridge, supra note 19, at 149 (citation omitted) (inter- nal quotation marks omitted). 31 Henigan, supra note 20, at 1195 (quoting Heller, 554 U.S. at 626). 32 Nation, supra note 17, at 406 (footnotes omitted). 33 Id. at 403 (footnote omitted).
9not stating that the Ninth Circuit should have applied a standard of review other than the one of intermedi- ate scrutiny, Justice Thomas wrote that âwhen a law burdens a constitutionally protected right, we have generally required a higher showing than the Court of Appeals demanded here.â43 Justice Thomas, joined by Justice Scalia, dis- sented again when on December 7, 2015, the Court denied a petition for a writ of certiorari in Friedman v. City of Highland Park.44 In Friedman, the Seventh Circuit âupheld categorical bansâ by the City on assault weapons, as defined in the Highland Park city ordinance at issue, and on large capacity maga- zines that held more than 10 rounds of ammuni- tion.45 The Seventh Circuit observed that two circuit courts of appeals âhave applied a version of âinterme- diate scrutinyâ and sustained limits on assault weapons and large capacity magazines.â46 The appeals court stated that the Supreme Court in the Heller and McDonald cases had set limits on the regulation of firearms, but that within those limits the Court had left âmatters open.â47 Thus, in a 2â1 decision the Seventh Circuit upheld the constitu- tionality of the ordinance, because âwhen there is no definitive constitutional rule, matters are left to the legislative process.â48 C. Recent Cases Deciding the Constitutionality of Firearms Laws The gun control laws that are likely to pass con- stitutional muster appear to include laws that impose conditions for or restrictions on the commer- cial sale of firearms; prohibitions on the possession of guns by felons and the mentally ill; prohibitions on the carrying of concealed weapons; bans on dan- gerous and unusual weapons, such as machine guns and assault weapons; and laws forbidding the carry- ing of firearms in sensitive places, such as schools and government buildings.49 If so, âthe ultimate effectâ of the Heller case may be limited.50 Indeed, although there are some exceptions as discussed in Subsection D, other post-Heller decisions reviewed for the digest have upheld gun control laws that were challenged. In addition to the Ninth Circuitâs decision in Jackson, other federal circuit courts of appeals, including the First, Second, Fourth, and Seventh Circuits, as well as federal district courts in California, Connecticut, Illinois, Maryland, Massachusetts, and Pennsylvania, have upheld federal or state gun control laws. Several state courts similarly have upheld state gun control laws against constitutional challenges. In 2009, the First Circuit held that 18 U.S.C. Â§ 922(a)(2)(A), which bans the possession of hand- guns by juveniles, was not unconstitutional based on the Courtâs decision in Heller.51 The court held that the law is consistent with the Second Amend- ment and cited the longstanding government tradi- tion of prohibiting the possession of handguns by minors.52 A year later, the Supreme Court of Wash- ington upheld a Washington state law that limits when minors may possess a firearm.53 In a case affirmed by the First Circuit, a federal district court in Massachusetts held that a Massachusetts law that requires individuals to have a firearm identification card and a license to carry does not violate the Second Amendment.54 Similarly, although located in another federal circuit, a federal district court in Illinois held that an Illinois statute that requires gun owners to register their firearms is constitutional.55 The court held that the government has a legitimate interest in having information about individuals who possess firearms in its jurisdiction.56 The Second Circuit held that a New York City law requiring individuals to pay $340 for a hand- gun license does not violate the Second Amend- ment.57 The court stated that the fee is intended to reduce the administrative costs associated with obtaining a license and is not prohibitively expen- sive.58 In another case decided by the Second Cir- cuit, the court held that a New York statute requiring applicants to demonstrate âproper causeâ for a license for a concealed weapon does not vio- late the Second Amendment as interpreted by the 43 Id. (citations omitted). 44 136 S. Ct. 447 (2015). 45 See Freidman v. City of Highland Park, 784 F.3d 406 (7th Cir. 2015), cert. denied, 136 S. Ct. 447 (2015). 46 See id. at 410. The ordinance defined the term âassault weaponâ to be any semi-automatic weapon that can accept a large capacity magazine and that has one of five other features. Id. at 407. 47 Id. at 412. 48 Id. at 412 (citation omitted) (Manion, J., dissenting). 49 Henigan, supra note 20, at 1195 (quoting Heller, 554 U.S. at 626â27) (internal quotation marks omitted). 50 Nation, supra note 17, at 417. 51 United States v. Rene E., 583 F.3d 8, 12 (1st Cir. 2009). 52 Id. at 16. 53 State v. Sieyes, 225 P.3d 995, 1003, 1005 (Wash. 2010). The court also held that that the Second Amendment applies to the states through the due process clause of the Fourteenth Amendment. Id. 54 Powell v. Tompkins, 926 F. Supp. 2d 367, 380 (D. Mass. 2013), affâd, 783 F.3d 332 (1st Cir. 2015). The defendant did not allege that the licensing statute was arbitrary or capri- cious. Id. at 379. 55 Justice v. Town of Cicero, 827 F. Supp. 2d 835, 846 (N.D. Ill. 2011). 56 Id. 57 Kwong v. Bloomberg, 723 F.3d 160, 165 (2d Cir. 2013). 58 Id. at 166â69.
10 Heller Court.59 The Fourth Circuit in United States v. Carpio-Leon60 upheld the constitutionality of 18 U.S.C. Â§ 922(g)(5), which bans the possession of a firearm by an illegal alien.61 The court held that the Second Amendment does not protect individuals who are in the United States unlawfully because they are not law-abiding members of the commu- nity, and prohibiting illegal aliensâ possession of firearms is rationally related to the congressional interest in public safety.62 The Seventh Circuit in Friedman upheld a city ordinance banning assault weapons and high capac- ity magazines.63 The courts in several other cases have upheld laws prohibiting the possession of certain weapons. In 2009, a federal district court in Connecticut held that a Connecticut law banning individuals from owning certain semiautomatic firearms is constitu- tional.64 The court found that Connecticutâs ban on the ownership of certain firearms is substantially related to Connecticutâs objectives of crime preven- tion and public safety.65 In addition, in 2009 a fed- eral district court in Pennsylvania held that 18 U.S.C. Â§ 922(k), which criminalizes the knowing pos- session of a firearm with an obliterated serial num- ber, does not violate the Second Amendment.66 The court stated that nothing in the Heller opinion com- pelled the court to find the statute unconstitutional and that the statutory restriction only burdens those who have an interest in owning a firearm that cannot be traced.67 In 2014, a California appellate court held that a California statute banning the possession of a short- barreled shotgun did not violate the Constitution.68 The court stated that short-barreled shotguns have been used historically for criminal purposes in Cali- fornia; therefore, firearms of that type are not enti- tled to Second Amendment protection.69 In addition, in 2014 a federal district court in Maryland upheld the constitutionality of a Maryland law that restricts the possession of certain assault weapons and large- capacity magazines.70 The court explained that Maryland has important interests in public safety and crime prevention that are reasonably related to the statute.71 In other cases, lower courts have dismissed cases challenging gun control laws banning firearms that come within the âlist of Heller-endorsed exceptions,â such as schools (e.g., the Gun Free School Zone Act), post offices, and âsensitive placesâ as discussed in Section II.E.72 There are cases in which firearms laws were held to be unconstitutional. In Fletcher v. Haas,73 the issue was whether lawful permanent resident aliens come within the ambit of the Second Amendmentâs right of âthe people.â Under Massachusetts law, anyone in the state wanting to own, possess, or purchase a fire- arm, rifle, or shotgun must obtain a permit.74 The permit card may be in the form of a firearms identi- fication card that allows a licensee to own and pos- sess ânon-large capacityâ shotguns and rifles. The identification card may also take the form of a license to carry that âpermits ownership and possession of a broader selection of weapons, including certain firearms.â75 Lawfully admitted aliens residing in Massachusetts were treated differently. They could obtain a permit allowing them to own or possess a rifle or shotgun, but not a firearm such as a pistol or revolver.76 The plaintiffs applied for but were denied a license to possess a firearm in their home for âimmediate self-defense purposes.â77 As the court framed the issue, â[t]he crux of this case is whether the Massachusetts firearms regula- tory regime, as applied to the plaintiffs Fletcher and Pryal, violates the Second Amendment or the Equal Protection [C]lause of the Fourteenth Amendment.â78 The court observed that several courts have held in cases arising under 18 U.S.C. Â§ 923(g)(5), described by the court as âpart of the federal equivalent to the Massachusetts firearms regulatory regime,â that illegal aliens are embraced by the Second Amend- ment.79 Although illegal aliens are not part of âthe peopleâ under the Second Amendment, the court 59 Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 93â94 (2d Cir. 2012). 60 701 F.3d 974 (4th Cir. 2012). 61 Id. at 982. 62 Id. at 981â82. 63 Freidman v. City of Highland Park, 784 F.3d 406, 412 (7th Cir. 2015). 64 Shew v. Malloy, 994 F. Supp. 2d 234, 250 (D. Conn. 2014). 65 Id. 66 United States v. Marzzarella, 595 F. Supp. 2d 596 (W.D. Penn. 2009). 67 Id. at 606. 68 People v. Brown, 173 Cal. Rptr. 3d 812, 825 (Cal. App. 4th 2014). 69 Id. at 823â25. 70 Kolbe v. OâMalley, 42 F. Supp. 3d 768 (D. Md. 2014). 71 Id. at 797. 72 Caroline L. Moran, Note, Under the Gun: Will Statesâ One Gun-Per-Month Laws Pass Constitutional Muster After Heller and McDonald?, 38 seton hAll legis. J. 163, 175 (2013). 73 F851 F. Supp. 2d 287 (D. Mass. 2012). 74 Id. at 289â90. 75 Id. at 289. 76 Id. at 289 & n.2. 77 Id. at 290. 78 Id. at 291. 79 Id. at 300 & n.18.
11 held that there was no basis for concluding that the Second Amendment did not âextendâ¦to lawful perma- nent residents.â80 One reason for the inclusion of law- ful permanent resident aliens is that denying Second Amendment rights to them âwould present state equal protection problems subject to strict scrutiny.â81 Although the court held that the Second Amendment applies to lawful permanent resident aliens, the court did not decide whether the Second Amendment applies to all lawfully admitted aliens.82 In deciding whether the Massachusetts firearms law at issue violated the Second Amendment, the court held, first, that the test of intermediate scru- tiny is the one that applies.83 Nevertheless, there is at least one situation in which the test of strict scru- tiny applies: âany law that would burden the âfunda- mental,â core right of self-defense in the home by a law-abiding citizenâ¦.â84 The court explained that [u]nder intermediate scrutiny, defendants must show that the Massachusetts firearms regime is supported by some form of strong showing, necessitating a substantial relation- ship between the restriction and an important governmen- tal objectiveâ¦. And strict scrutiny is even more demanding, requiring evidence that the law furthers a compelling inter- est and is narrowly tailored to achieve that interestâ¦.85 The court held, however, that â[t]he Massachu- setts firearms regulatory regime, as applied to Fletcher and Pryal, does not pass constitutional muster regardless of whether intermediate scru- tiny or strict scrutiny applies.â86 Finally, the court ruled that 18 U.S.C. Â§ 927 did not preempt the Massachusetts firearms laws. Since the Heller decision, federal district courts in Maryland and California and the Fourth and Ninth Circuits have reached different conclusions on whether state statutes in California and Maryland imposed unconstitutional conditions on obtaining a permit to carry a concealed firearm.87 There has also been a split in the state courts over whether stun guns are pro- tected by the Second Amendment. In 2012 and 2014, two courts ruled that stun guns are protected,88 but in 2015 the Supreme Judicial Court of Massachusetts held in Commonwealth v. Caetano89 that stun guns are not protected by the Second Amendment. Second Amendment challenges persist, however. Most recently, as discussed in Section II.F, the District of Columbia Circuit held that some of the Districtâs post-Heller revised firearms laws were constitutional, but that others could not be shown to be necessary for the advancement of public safety and, therefore, were unconstitutional under an intermediate level of scrutiny. D. Whether It Is Constitutional to Ban the Open Carrying of Firearms There are cases holding that an absolute ban on carrying a firearm outside the home violates the Second Amendment. In 2012, in Moore v. Madigan,90 the Seventh Circuit in an opinion by Judge Richard Posner invalidated an Illinois law that forbid âa person, with exceptions mainly for police and other security personnel, hunters, and members of target shooting clubsâ¦to carry a gun ready to use (loaded, immediately accessibleâthat is, easy to reachâand uncased).â91 The statute also prohib- ited the carrying of an âunloaded gun in public, if itâs uncased and immediately accessibleâ¦ other than [by] police and other excepted persons, unless carried openly outside a vehicle in an 87 See Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013) (holding that the âgood-and-substantial-reason require- mentâ for a handgun permit was constitutional under the Second Amendment as applied to Woollard); Richards v. Prieto, 560 F. Appâx 681, 682 (9th Cir. 2012) (holding that Yolo Countyâs policy for issuing concealed carry permits impermissibly infringes on the Second Amendment right to bear arms in lawful self-defense). 88 State v. DeCiccio, 105 A.3d 165 (Conn. 2014); People v. Yanna, 824 N.W.2d 241 (Mich. Ct. App. 2012). 89 470 Mass. 774, 26 N.E.3d 688 (Mass. 2015), vacated per curiam, No. 14-10078, 2016 U.S. LEXIS 1862 (2016). 90 702 F.3d 933 (7th Cir. 2012). 91 Moore, 702 F.3d at 934 (citing 720 ill. Comp. stAt. Ann. 5/24-2 LexisNexis 2015). There are exceptions for a person in his or her own home (owned or rented), in his or her fixed place of business, or on the property of someone who has permitted him or her to be there with a ready-to- use gun. See id. (citing 720 ill. Comp. stAt. Ann. 5/24-1(a) (4), (10), and 1.6(a) (LexisNexis 2015). 80 Id. at 301. 81 Id. (citation omitted). 82 Id. at 301â02. 83 Id. at 302 (citing United States v. Staten, 666 F.3d 154, 162â63 (4th Cir. 2011) (upholding 18 U.S.C. Â§ 922(g)(9) under intermediate scrutiny), United States v. Chester, 628 F.3d 673, 683 (4th Cir. 2010) (applying intermediate scrutiny but holding that the government failed to carry its burden to establish a reasonable fit), and United States v. Reese, 627 F.3d 792, 802 (10th Cir. 2010) (applying inter- mediate scrutiny under Second Amendment to 18 U.S.C Â§ 922(g)(8)). The court in Fletcher noted that courts also have applied intermediate scrutiny to prohibitions on gun pos- session outside the home. Fletcher, 851 F. Supp. 2d at 302â 03 (citing United States v. Masciandaro, 638 F.3d 458, 471 (4th Cir. 2011) (applying intermediate scrutiny to ban on gun possession in national parks), as well as to laws pro- hibiting possession of certain firearms), and Marzzarella, 614 F.3d at 97 (applying intermediate scrutiny to ban on possession of firearms with obliterated serial number)). 84 Fletcher, 851 F. Supp. 2d at 303 (citation omitted) (some internal quotation marks omitted). 85 Id. (citations omitted) (internal quotation marks omitted). 86 Id.
12 unincorporated area and ammunition for the gun is not immediately accessible.â92 In striking down the law largely on the basis of the Supreme Courtâs decision in Heller, the appeals court stated that it could not âignore the implica- tionâ in Heller âthat the constitutional right of armed self-defense is broader than the right to have a gun in oneâs home.â93 On the other hand, the court stated that it is not clear in what places public authorities may ban fire- arms altogether without shouldering the burdens of litiga- tion. The notion that self-defense has to take place wherever [a] person happens to be appears to us to portend all sorts of litigation over schools, airports, parks, public thorough- fares, and various additional government facilitiesâ¦.94 According to the court, although the need for self-defense may be most acute in the home, it may not be assumed that self-defense is not also acute outside the home.95 The court stated that since Heller, the constitutionality of banning firearms in places other than the home is completely unre- solved. Judge Posner quoted a Fourth Circuit opin- ion in which the court lamented that ââthere may or may not be a Second Amendment right in some places beyond the home, but we have no idea what those places are, what the criteria for selecting them should be, what sliding scales of scrutiny might apply to them, or any one of a number of questions.ââ96 Judge Posnerâs court was persuaded, however, by the fact that Illinois was âthe only state that maintains a flat ban on carrying ready-to-use guns outside the homeâ¦.â97 In the context of the courtâs statement that a proper balance is required, Judge Posner high- lighted with approval the Second Circuitâs decision in Kachalsky v. County of Westchester,98 in which the court âupheld a New York law that requires an appli- cant for a permit to carry a concealed handgun in public to demonstrate âproper causeâ to obtain a license.â99 The proper cause requirement means that an applicant for a concealed carry license in New York âmust demonstrate a need for self-defense greater than that of the general public, such as being the target of personal threatsâ¦.â100 Unlike the approach of the District of Columbia Circuit in Heller III, discussed in Section II.F, in which the court allowed the consideration of expert testimony, the Seventh Circuit in Moore stated that the constitutionality of the Illinois law did not involve factual questions for determination. Only âlegislative factsâ were relevant;101 however, the key legislative facts that the state needed but failed to show were that the effects of the Illinois statute were positive.102 Accordingly, the court held that the Illinois stat- ute was unconstitutional, but stayed the decision for 180 days to allow the legislature âto craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendmentâ¦.â103 A second case, one involving the constitutionality of a Florida statute banning the open carrying of fire- arms in public, is Norman v. State.104 Norman was arrested and charged with carrying a firearm in its holster that was completely exposed to public view. Section 790.053 of the Florida Statutes prohibits the open carrying of loaded or unloaded handguns in most public areas.105 Although the statute does not provide for the issuance of a permit to carry a firearm,106 pur- suant to Section 790.06(2) of the Florida Statutes, if an applicant meets the statutory conditions for a license, the designated state office is required to issue a license to carry a concealed weapon.107 In Norman, the court stated that its determina- tion of the lawâs constitutionality depended on 1) how close the law comes to the core of the Second Amendment right of self-defense and 2) the severity of the lawâs burden on the right.108 A law is unconsti- tutional if it imposes such a severe restriction on the core right of self-defense that it amounts to a destruc- tion of the Second Amendment right.109 Therefore, clearly âa total ban on the public carrying of ready-to- use handguns outside the home cannot survive a constitutional challenge under any level of scru- tiny.â110 The court stated, however, that the Second Amendment is subject to âtraditional restrictionsâ 92 Moore, 702 F.3d at 934 (citation omitted). 93 Id. at 935. 94 Id. at 942 (citation omitted) (emphasis added) (inter- nal quotation marks omitted). Although the court stayed its decision for 180 days to permit the legislature to âto craft a new gun lawâ with âreasonable limitations,â the court held that the Illinois statute at issue âimposed limits that went âtoo far.â Id. 95 Id. at 935. 96 Id. at 942 (citation omitted). 97 Id. at 940 (citations omitted). 98 701 F.3d 81 (2d Cir. 2012). 99 Moore, 702 F.3d at 941. 100 Id. (citation omitted). 101 Id. at 942. 102 Id. 103 Id. 104 159 So. 3d 205 (Fla. Dist. Ct. App. 2015). 105 Id. at 215. 106 Id. at 217. 107 Id. 108 Id. at 209 (citation omitted) (quotation marks omitted). 109 Id. (citation omitted) (quotation marks omitted). 110 Id. at 212.
13 that reveal the scope of the right.111 Based on the number of concealed carry licenses that Florida had issued, the court found that the Florida âlicensing statute does not effectively act as an exclusionary bar to the right to bear arms in lawful self-defense outside the home.â112 Thus, the stateâs ban on open carry does not infringe on the âcentral componentâ of the right of self-defense.113 As for whether to apply a test of intermediate or strict scrutiny, the court analyzed other decisions and held that intermediate scrutiny is the proper standard.114 The state had demonstrated that its interest in public safety is a compelling reason for banning open carry and that there is a âreasonable fitâ between the statute and the legislatureâs objec- tives.115 As for the right to carry a firearm outside the home, the court stated that âno decision inter- preting the Second Amendment can be cited for the proposition that a state must allow for one form of carry over another.â116 Thus, the court in Norman, although recogniz- ing recent cases stating that âthe right to bear arms does encompass the right to carry a gun outside the home,â117 upheld Section 790.053 of the Florida Statutes that generally prohibits the open carrying of firearms.118 In a third case, a federal district court struck down a ban on carrying a firearm in recreational areas in Idaho administered by the United States Army Corps of Engineers (Corps). In Morris v. United States Army Corps of Engineers,119 the plain- tiff, who lived in western Idaho and used public lands administered by the Corps, challenged the Corpsâ bans on carrying firearms in recreational sites and possessing firearms in a tent.120 In reach- ing its decision, the district court relied on Heller121 and Peruta v. County of San Diego.122 In Peruta, the Ninth Circuit held that a San Diego County law that banned the open and concealed carry of handguns for law-abiding citizens violated the Second Amend- ment. The Ninth Circuit held that although a state âmay be able to ban the open or concealed carry of firearms, it may not ban both.â123 (As of this publica- tion, the Ninth Circuit has vacated the decision in Peruta and granted a rehearing en banc.) As the court in Morris described the Corpsâ regu- lations, at most the Corps âwould allow a person to carry an unloaded firearm as long as he was not also carrying its ammunition.â124 The court, observing that the Heller precedent is limited to facilities such as schools and government buildings,125 stated that the parks administered by the Corps are not âsensi- tive places.â126 Following the precedents set by Heller and Peruta, the court held that the Corps âimposes an outright banâ that is âunconstitutional under any level of scrutiny.â127 E. Airports as a Sensitive Place Within the Meaning of Heller In Heller, Justice Scalia stated that the govern- ment may regulate or even prohibit firearms in âsensitive placesâ without violating the Second Amendment.128 Although the case did not involve airports, several courts have considered what quali- fies as a sensitive place within the meaning of the Heller decision. Two federal courts have held, for example, that a public park where children play is a sensitive place,129 and that the locations in national parks where vehicles travel are sensitive places.130 The Supreme Court of Virginia has held that because George Mason University in Fairfax, Virginia, is a sensitive place, a statute banning weapons inside university buildings and at university events 123 Morris, 60 F. Supp. 3d at 1122 (citation omitted) (emphasis in original). 124 Id. at 1123. 125 See id. at 1123â25. 126 Id. at 1124. 127 Id. at 1125. 128 Justice Scaliaâs opinion states that â[w]e also recognize another important limitation on the right to keep and carry armsâ¦. [A]s we have explainedâ¦the sorts of weapons protected were those âin common use at the timeâ [of the Second Amend- ment]. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of âdangerous and unusual weapons.ââ Heller, 554 U.S. at 627 (quoting United States v. Miller, 307 U.S. 174, 179 (1939)). See Shupak, supra note 18, at 790 (quoting Heller, 128 S. Ct. at 2817). 129 Warden v. Nickels, 697 F. Supp. 2d 1221, 1229 (W.D. Wash. 2010). 130 United States v. Masciandaro, 648 F. Supp. 2d 779, 790 (E.D. Va. 2009). 111 Id. at 213. The court also considered a provision of the Florida Constitution, although not a mirror image of the Second Amendment, that includes the right to bear arms in Florida subject to a provisoââexcept that the manner of bearing of arms may be regulated by law.â See Norman, 159 So. 3d at 214 (quoting flA. Const. art. 1, Â§ 8). 112 Norman, 159 So. 3d at 219. 113 Id. 114 Id. at 222 115 Id. 116 Id. at 225. 117 Id. at 212. 118 Id. at 209. 119 60 F. Supp. 3d 1120 (D. Idaho 2014). 120 Id. at 1121. 121 D.C. v. Heller, 554 U.S. 570 (2008). 122 742 F.3d 1144 (9th Cir. 2014), vacated, 781 F.3d 1106 (9th Cir. 2015).
14 does not violate the Second Amendment.131 A fed- eral district court in Delaware, although declining to decide whether a common area in an apartment complex is a sensitive place, did hold that the Wilmington Housing Authorityâs policy prohibit- ing firearms in common areas did not violate the Second Amendment.132 Although some commentators have argued that airports are sensitive places, there is a dearth of judicial authority on whether an airport is a sensi- tive place where firearms may be regulated.133 In People v. Ferguson,134 in which the defendant was charged with possession of a firearm, as well as a knife, in a New York airport, a New York criminal court stated: â[T]he seriousness of having a firearm in an airport in a state in which defendant is not licensed to carry it strongly suggests that the inter- ests of the public are best served by the continued prosecution of [the] defendant.â135 The court held that the New York gun licensing statute did not vio- late the Second Amendment: [A]t the time of his arrest, [the] defendant was not in his home, but was in an airportâ¦. [T]he requirement that handguns be licensed in the State of New York is not tanta- mount to a total ban and, therefore, is not a âsevere restric- tionâ as was the case in Heller. Lastly, [in Heller] the Court identified certain presumptively lawful regulatory mea- sures which would survive a constitutional challenge including the carrying of firearms in âsensitive places.â Licensing is an acceptable regulatory measure and an air- port falls within the scope of a âsensitive place.â136 Apparently, the only other case mentioning air- ports as a sensitive place is United States v. Davis.137 The Ninth Circuit, in affirming the defendantâs con- viction for carrying a concealed weapon on an air- plane by impersonating a federal customs agent, obliquely stated that there was nothing in the Heller opinion that âwas intended to cast doubt on the pro- hibition of concealed weapons in sensitive places.â138 One commentator argues that government may regulate the possession of firearms in the nonsterile areas of airports because the [g]overnment has the ability to âpreserve the property under its control for the use to which it is lawfully dedi- cated,â which implicitly includes the ability to deny access to persons whose intended activities do not pertain to that purpose. For example, the government can deny access to an airport to anyone who is not engaging in air travel.139 Nevertheless, at present there is scant judicial precedent holding that an airport is a sensitive place within the meaning of Heller. F. Recent Reliance on Expert Testimony in Determining the Constitutionality of Firearms Laws In a case decided by the District of Columbia Circuit on September 18, 2015, Heller v. District of Columbia,140 referred to by the court as Heller III, the court approved of the district courtâs use on remand of expert testimony to aid the court in decid- ing whether the Districtâs revised firearms laws vio- lated the Second Amendment. After the Supreme Courtâs decision in Heller, the Districtâs city council revised the Districtâs firearms laws by enacting the Firearms Registration Amendment Act of 2008 (FRA). The FRA imposed various conditions on the registration of a firearm and limited the persons eligible to register a fire- arm.141 In a prior appeal, referred to by the court as Heller II, the court upheld the constitutionality of the FRAâs âbasic registration requirementâ as it per- tained to handguns.142 On some issues, however, the record was insufficient to permit the court to decide whether the laws were ânarrowly tailored to serve an important governmental interestâ under a standard of intermediate scrutiny.143 After the courtâs remand to the district court, the District of Columbia City Council enacted the Firearms Amendment Act of 2012. The district court entered a summary judgment for the District based in part on the deposition testi- mony and reports of expert witnesses.144 On appeal, Heller challenged the district courtâs admission of the deposition testimony and related reports.145 The District of Columbia Circuit held that the district court had not abused its discretion in admitting the 131 Digiacinto v. Rector & Visitors of George Mason Univ., 704 S.E.2d 365, 368 (Va. 2011). 132 Doe v. Wilmington Hous. Auth., 880 F. Supp. 2d 513, 532â597 (D. Del. 2012), certified question answered, 88 A. 3d 654 (Del. 2014), revâd in part, 568 F. Appâx 128 (3d Cir. 2014). 133 Megan Ruebsamen, The Gun-Shy Commonwealth: Self-Defense and Concealed Carry in Post-Heller Massachusetts, 18 suffolk J. triAl & App. AdvoC. 55 (2013) (citing Michael C. Dorf, Does Heller Protect a Right to Carry Guns Outside the Home?, 59 syrACuse l. rev. 225, 227â28 (2008) (suggesting that Justice Scalia intended to leave open the possibility that additional sensitive places could include airports)). 134 873 N.Y.S.2d 513 (N.Y. Crim. Ct., Queens Cnty. 2008). 135 Id. 136 Id. (emphasis added). 137 304 F. Appâx 473 (9th Cir. 2008). 138 Id. at 474. 139 Kenneth A. Klukowski, Making Second Amendment Law with First Amendment Rules: The Five-Tier Free Speech Framework and Public Forum Doctrine in Second Amendment Jurisprudence, 93 neB. l. rev. 429, 492 (2014) (footnotes omitted). 140 801 F.3d 264, 264 (D.C. Cir. 2015). 141 Id. at 269. 142 Id. 143 Id. 144 Id. at 269â70. 145 Id. at 270.