Michigan Legalizes Marijuana, Loses Its “Permanent Brady Permit” Status With ATF

In twenty-two states, ATF allows licensed firearm dealers (FFL’s) to accept a state concealed carry license or permit (in Michigan, the terminology is Concealed Pistol License, or CPL) in lieu of a federal background check, because those states have concealed carry permit requirements at least as stringent as the federal background check requirements (see the ATF Permanent Brady Permit Chart, so-named because the state’s permit or license program fulfills the requirements of the federal Brady Law background checks for firearm purchases on an ongoing basis). In practice, this means that permit/license holders in these states can skip the NICS background check when purchasing firearms from a licensed gun dealer, whether online, in-store, or at a gun show, even though normally required for the dealer to do the background check.  Note the caveat that an individual’s permit or license must be less than five years old, so in states that issue “lifetime” permits or licenses (Indiana, Louisiana, Missouri, and Tennessee), the permit/license holder will have to renew it every five years in order to skip the NICS background check when purchasing a firearm from an FFL.

Michigan was one of these “Permanent Brady Permit” states from 2006 until the end of 2019, but the state legalized recreational marijuana sales starting in December 2019.  The state did not modify its CPL program, however, to screen out marijuana users.  Marijuana remains unlawful under the federal Controlled Substances Act.  Federal firearm statutes, such as 18 U.S.C. § 922(g)(3) prohibit regular users of controlled substances, including marijuana, from possessing or transporting any firearms.

About two weeks ago, on March 3, 2020, the ATF Acting Director issued a Public Safety Advisory to all licensed firearm dealers in Michigan, effectively revoking this substitution in Michigan. All licensed gun dealers in Michigan must now conduct NICS background checks for all firearm sales, even if the purchaser has a valid concealed carry permit.  This is the latest in a confusing series of steps by the U.S. Attorney General and/or ATF over the years regarding firearm enforcement in states with some form of marijuana legalization (medical marijuana is far more common), but is consistent with the current DOJ trend toward stepped-up enforcement of federal gun and drug laws. As a technical matter, note that the ATF Advisory mostly references 18 U.S.C. § 922(t), which is the section requiring FFL’s to conduct background checks.

“Advisories” by federal regulatory agencies, like the one under consideration here, have a somewhat complicated place within Administrative Law.  Agencies frequently issue official “Advisories” and “Guidance” letters or documents to inform regulated entities, or an entire regulated industry, about its current policies regarding enforcement policies or priorities, permitting/licensing approvals or revocations, or changed stances the meaning of federal statutes that come under the agency’s purview.  The federal Administrative Procedure Act specifically exempts “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice” from normal notice-and-comment requirements for new regulations or regulatory changes, which normally can take months or years, and can invite both political and judicial scrutiny.  Legally, this means that these Advisories or Guidance Letters do not have the force of law – they lack the legal status of a promulgated regulation or an enacted statute, and this in turn has implications for the amount of deference such texts receive from the courts (Chevron does not apply, for example).  In the arena of firearm policy, the exemption for “interpretive rules” is part of the multi-circuit litigation over the bumpstock ban, as the DOJ now maintains that the ban is not a new regulation, but merely an interpretation of a longstanding statutory provision – and therefore the ATF does not need to invoke Chevron deference for the bumpstock ban (Justice Gorsuch’s lengthy concurrence in the denial of certiorari for Guedes v. ATF highlights the controversy of applying Chevron to ATF firearm regulations).

Most of the time, agency guidance documents are helpful information for regulated entities about how to comply with existing statutes and regulations, and how to avoid becoming the target of an investigation or enforcement action.  In practice, these agency documents sometimes provide “safe harbor” provisions, essentially promising regulated entities or individuals that they will not face an enforcement action (which could be an agency lawsuit, or a denial or revocation of a valuable permit or license) if they stay above or below certain thresholds. Such “safe harbor” indications (or their opposite, a “you’re-definitely-in-trouble” warning), in turn, can sometimes appear to be an agency’s attempt to circumvent the hassle of notice-and-comment rulemaking – the agency maintains that the announcement is merely “guidance” or “advice,” but the line-drawing is functionally a new rule, at least from the viewpoint of the regulated parties.  Several circuit court and Supreme Court decisions have wrestled with this blurry line between agency guidance documents and full-fledged regulations; the cases go both ways, making this an unpredictable and confusing area of Administrative Law, though the courts generally disfavor agencies subsequently trying to enforce the quasi-rules set forth in these guidance documents.  The area is unpredictable enough that it is often still worthwhile for agencies to try this tactic if there is some reason to avoid notice-and-comment procedures; and worthwhile for regulated entities to challenge the guidance and insist that the agency follow rulemaking procedures.  Under the Trump Administration, the Department of Justice has been signaling a move away from issuing or enforcing these advisories and guidance documents in the 2017 “Sessions Memo” (discouraging issuing guidance documents), the 2018 “Brand Memo” (limiting the use of these texts in enforcement) and the late-2018 amendments to the DOJ’s internal Justice Manual:

Criminal and civil enforcement actions brought by the Department must be based on violations of applicable legal requirements, not mere noncompliance with guidance documents issued by federal agencies, because guidance documents cannot by themselves create binding requirements that do not already exist by statute or regulation.  See JM 1-19.000.  Thus, the Department should not treat a party’s noncompliance with a guidance document as itself a violation of applicable statutes or regulations.  The Department must establish a violation by reference to statutes and regulations.  The Department may not bring actions based solely on allegations of noncompliance with guidance documents.  The Department may continue to rely on agency guidance documents for purposes, including evidentiary purposes that are otherwise lawful and consistent with the Federal Rules of Evidence, that do not treat such documents as creating by themselves binding requirements that do not already exist by statute or regulation.

The excerpt above illustrates the complex situation with these official documents – they are not “law,” and should not be enforced as such, but they are enough like laws that the DOJ has to instruct its attorneys not to enforce them as laws, while at the same time, they can rely on them (i.e., use them) as evidence in their enforcement actions.  Moreover, as indicated by the new Advisory to Michigan FFLs – effectively rescinding or revoking Michigan’s 14-year status as a “Permanent Brady Permit” state – federal agencies continue to issue these documents, including agencies within the DOJ, such as ATF.  Note that a licensed gun dealer in Michigan can now face an enforcement action (including potential loss of their license) for selling a gun to a CPL holder without conducting a background check, which was not the case for the last 14 years. In addition, ATF has already arrested and charged at least one Detroit resident this year, for posting images on social media of his recreational marijuana use, now legal under state law. He also posted photos of himself holding his handgun. (Note: it is not clear from published reports whether this defendant had a Michigan CPL license).  He faces up to 10 years in prison.

“Text, History, and Tradition” as a Three-Part Test

Is “text, history, and tradition” (THT) an example of what linguists would call a “hendriatris,” referring to a single jurisprudential/decisional approach, or do each of the three words have semantic significance?

Sam Bray has an excellent article about hendiadys in the Constitution; a hendiadys is a word couplet with unitary semantic meaning, while a hendiatris is a triplet.  Bray’s constitutional examples are “necessary and proper” and “cruel and unusual.” English legal writing is full of these, such as “cease and desist,” and “metes and bounds.”

Peter M. Tiersma, in his classic text Legal Language, explained that many of the verbal couplets in legal English are inherited from earlier eras – vestiges either of pre-Norman Old English alliteration and consonants (think pairs of words starting with the same letter, like “aid and abet” or “to have and to hold”) that aided with memorization in a pre-literate society, or are vestiges of the two-language problem after the Norman Conquest, when (for four centuries) official documents used legal (Norman) French, but the people governed by the contracts or laws spoke the Germanic-based Old or Middle English.  Many of our legal couplets, therefore, represent the Norman French word and the Anglo-Saxon word for the same thing, such as “devise and bequeath,” “will and testament,” “free and clear,” “acknowledge and confess,” or “good and just consideration.”

Outside of the legal context, English has other binomials – e.g., “short and sweet,” “down and out,” “peace and quiet,” and “safe and sound,” “loud and clear,” and “wear and tear” – that often occur together, in an irreversibly-fixed order. Binomials are not necessarily hendiadys, since the linguistic convention of joining the words a certain way does not necessarily remove the distinct meaning of each.

It seems like the advocates of the THT approach in Second Amendment cases are using it as a hendriatris, and as a rival approach to tiers of scrutiny.  But even were the Supreme Court to adopt THT as the mandatory analysis rubric for Second Amendment cases (rejecting tiers of scrutiny), the lower courts, over time, could start treating this as a three-part test, assuming formalism is the tendency of institutional path dependence.

Jake Charles discussed here that “text, history, and tradition” (THT) is an approach that gun rights advocates have urged courts to adopt instead of the two-part framework of intermediate scrutiny that is now the consensus view among the federal circuit courts.  Jake also observed that Paul Clement advocated THT during oral arguments last December in NYSRPA, as did Jeff Wall (arguing for the government), and the amicus briefs by the NRA and other gun rights groups propounded THT as a centerpiece of their argument.

THT is commonly attributed to Justice Kavanaugh, though he did not invent the phrase.  While still a judge on the DC Circuit, Kavanaugh argued in a lengthy dissent in Heller II that courts should use “text, history, and tradition” as the analytical rule for Second Amendment cases. He acknowledged, “To be sure, the Court never said something as succinct as ‘Courts should not apply strict or intermediate scrutiny but should instead look to text, history, and tradition to define the scope of the right and assess gun bans and regulations,’”  but explained that it was the “clear message” implied by the Supreme Court in Heller I and McDonald. Kavanaugh explained that the phrases like “historical tradition,” “historical justifications,” and “historical understanding” in the Supreme Court’s Heller decision referred to what the original adopters of the Second Amendment subjectively understood it to mean, especially regarding types of weapons protected.

For the “tradition” prong of THT, Kavanaugh offers a parenthetical definition: “that is, post-ratification history,” followed by a quote from Heller’s language that this means an “examination of a variety of legal and other sources to determine the public understanding of a legal text in the period after its enactment or ratification.”

He never defines “text,” that is, whether “text” is the final adopted verbiage of the Second Amendment itself, or if it includes wording from earlier drafts (like the “religiously scrupulous” clause that dropped out, discussed at length by both the majority and dissent in Heller), or the text of the law being challenged. Kavanaugh’s dissent uses the triplet “text, history, and tradition” twenty times and the couplet “history and tradition” (minus “text”) fourteen times, seemingly interchangeably, and raising the question of whether he is using “text, history, and tradition” to refer to a two-part analytical framework of “history” and “tradition,” as he defines these two terms and uses the couplet (not as a hendiadys) numerous times. Second Amendment scholar Nelson Lund has recently criticized Kavanaugh’s reading of Heller, and refers to the THT alternative as “an unusual jurisprudential approach” that invites “covert judicial policymaking” (i.e., cloaking the judge’s policy preferences in a shroud of speculative or dubious historical arguments.

Where did then-Judge Kavanaugh get the phrase “text, history, and tradition” that he used as a constant refrain in his dissent?  As far as I can tell, the THT phrase as a triplet first appeared in federal court opinions in a concurrence by Justice Thomas in the 1996 case Lewis v. Casey (“In lieu of constitutional text, history, or tradition, Bounds turned primarily to precedent in recognizing the right to state assistance in the researching and filing of prisoner claims.”).  I believe Judge Kavanaugh borrowed the phrase from Justice Thomas.

But Justice Thomas may have been borrowing this trinomial from earlier legal sources.  The phrase entered our legal language in a pair of judicial opinions a decade earlier in a pair of 1986 superior court opinions from Connecticut (same judge)Doe v. Maher (see footnote 29) (“The plaintiffs raise only state constitutional grounds to invalidate the regulation. In making these determinations, the court must interpret our state constitution independently of the United States constitution when required by its text, history, tradition and intent.”); and Williams v. Coppola, (see footnote 1: “In making a determination under the state constitution, the court must interpret that constitution independent of the United States constitution when required to do so by its text, history, tradition and intent.”).  Both opinions are by Judge Robert I. Berdon from the same term.

Also predating Justice Thomas’ use of the phrase is its first appearance in law reviews in a 1988  article by Daniel Farber, Legal Pragmatism and the Constitution, (“For a pragmatist the analysis must start—but not finish—with an examination of our constitutional text, history, and traditions.”).  This was followed in a 1991 article by Mary Ann Glendon and Raul F. Yanes, Structural Free Exercise (“With little or no support from text, history, or tradition, the members of the Everson Court braided into the Religion Clause the notions that the establishment provision was meant to create a ‘wall of separation’ between religion and the government, that it was to be broadly construed to prohibit all government aid to religion, and that government was required to be strictly neutral as between religion and nonreligion.”); then followed by Paul Brest in Interpretation and Interest (1992) (“Second, our texts, histories, and traditions are seldom univocal, but often include competing and conflicting values.”).

After that, the three-part phrase showed up in some New Jersey judicial opinions: State v. Tucker (N.J. 1994) (“. . .[We] support our conclusion that greater protection is appropriate on the basis of constitutional text, legislative history, state traditions, or other factors.”); and State v. A.G.D. (N.J. 2003) (quoting an excerpt from Tucker decision).

The New Jersey opinions, which still predate the usage in Second Amendment contexts, modify each word, making it seem that these are distinct questions: text (the relevant constitution’s wording itself), history (meaning either legislative history of the statute, or of the constitutional clause), and traditions (meaning that jurisdiction’s local traditions, not necessarily the entire Anglo-American common law).  Daniel Farber used this phrase to refer to three distinct questions as well.

In any case, it seems like the phrase was in use before anyone started applying it to Second Amendment questions.  And in pre-Heller usage, these are three distinct things, and if applied in Second Amendment cases, this should operate as a three-prong test (note these are three prongs of a test, not three sequential steps).  If so, like many multi-prong tests, the answers could weigh against or offset each other: the history (say, the Convention debates about the Second Amendment) may suggest different answers than the post-ratification “tradition” (laws, regulations, and court decisions).  Courts will have to decide which prong deserves the most weight.

Joseph Blocher and Eric Ruben have written that the Supreme Court could, in one scenario, make the drastic move of using NYSRPA to supplant the consensus view (the two-part test) with the THT view; they argue convincingly that this would be a mistake – disrupting thousands of cases over a decade of precedent, and dropping an eminently workable judicial test with one that is largely untested and fraught with indeterminacy.  As Joseph and Eric explain, “The 27 words of the amendment are silent on many questions, and history and tradition don’t speak with one voice—there were and are significant regional differences in approaches to gun regulation, as well as divisions between urban and rural areas.”  They are correct that there are multiple voices speaking within the history, as well as within the post-enactment tradition of laws and court decisions.

Moreover, as Darrell Miller explained here, 1) the intermediate-scrutiny two-part framework “does not reject text, history, and tradition; it incorporates it at step one (and perhaps at step two as well),” and 2) analogies will run out or wear thin between Founding-Era weapons/regulations and modern weapons/regulations. Eric Ruben joined Joseph and Darrell in a thoughtful amicus brief in the NYSRPA case, setting forth a compelling argument for the Court to maintain the two-part balancing test that has become the consensus view, and to reject the murky THT alternative advocated by the petitioners and other amici in the case.

I agree with the position taken by Joseph, Darrell, and Eric in their amicus brief: the two-tiered approach adopted by circuit courts is working well, and it has the appeal of now being well-established and widely accepted.  Moreover, I worry that the judges and advocates using the phrase “text, history, and tradition” in the Second Amendment context are using it in a vague, undefined way, mixing originalist methodological commitments with a sense of cultural nostalgia.  From a legal pragmatist view, I worry that the “text, history, and tradition” trope is merely a firewall against any new or innovative firearm regulations, such as the innovative but promising laws providing for extreme risk protection orders, microstamping requirements, or one-per-month purchase limits.

Firearm Policy and Alcohol Abuse

In my forthcoming article, The Complex Interplay Between the Controlled Substances Act and the Gun Control Act, I focus on 18 U.S.C. §922(g)(3), which in its current form incorporates the Controlled Substances Act (CSA) by reference and thereby prohibits violators of the CSA from possessing a firearm. This statutory intersection currently results in more than 14,200 individuals per year failing a background check for gun purchases, and around two hundred prosecutions per year for possession of guns by drug users as the lead charge.  Circuit courts have consistently upheld the constitutionality of §922(g)(3), even in the years after Heller.

Many of the policy reasons for prohibiting users of illegal drugs from owning firearms would seem to apply equally, if not more, to alcohol abuse, but federal law ignores alcohol abuse in its list of prohibiting factors in §922(g).  Alcohol is not a “controlled substance” under federal law, even though there is a federal minimum age requirement, and it is highly regulated by states and localities.  The fact that narcotics are contraband creates a distinction between drug users and alcohol abusers, especially from a political standpoint.  In addition, due to the illegality of controlled substances, illegal drug users may be more likely than alcohol users to interact regularly with violent street gangs, or at least violent dealers, and removing guns from one side of the transaction can lower the risk of disagreements escalating into shootings.

Even so, several prominent experts on firearm policy advocate for adding alcohol abusers to the list of federal prohibited persons, and some states have done this in one form or another (see also here and here and here).  Suicides make up roughly two-thirds of the gun fatalities of every year, and these gun deaths disproportionately involve either a history of alcohol abuse, alcohol abuse at the time of the self-inflicted gunshot wound, or both. Interestingly, some empirical studies also indicate that firearm owners are more likely to abuse alcohol or become alcoholics.  Alcohol-related gun violence is more lethal than car crashes, according to one recent study. We lack a federal regulation even against the use or purchase of firearms while intoxicated. States, therefore, sometimes try to fill this gap by adopting laws to help remove guns from those with a pattern of alcohol abuse, or to prohibit firearm use while intoxicated.

Ohio, for example, prohibits firearm carrying for alcohol users: “No person, while under the influence of alcohol or any drug of abuse, shall carry or use any firearm or dangerous ordnance,” which apparently applies even if the firearm is unloaded. State v. Weber was a 2019 case involving an as-applied Second Amendment challenge to this statute by a defendant charged with using weapons while intoxicated.  Weber’s wife had reported a domestic dispute to the police, alleging Weber was intoxicated and in possession of a gun, though there was no proof that Weber was intending to use the gun to perpetrate a crime, but only that he was severely intoxicated.  In court, Weber claimed that the statute forces citizens like him to choose between their constitutional right to keep arms at home, and to defend himself and his family against potential (hypothetical) criminal attacks, and alcohol use.  The court rejected this argument because Weber had not, in fact, faced a situation that required him to defend his family.  Then, invoking the famous disclaimer in Heller that the Second Amendment is not an unlimited right, the court concluded that the State has a strong and compelling interest to prevent gun violence, which is closely related to alcohol abuse. The statute was sufficiently tailored to serve the significant government interest of guarding public safety, and it left open ample opportunities to bear and keep arms.

Another way that states fill the gap in federal firearm policy regarding alcohol is to adopt statutes that make repeated alcohol-related offenses (typically DUI or DWI arrests and/or convictions) a felony, which then triggers a felony report to the NICS database, or a state counterpart. The most frequently-applied federal firearm disqualifier, both in terms of gun purchase denials (failed background checks) and prosecutions, is 18 U.S.C. §922(g)(1), which prohibits firearm possession by prohibited persons who have been convicted for a crime punishable by over one year in prison. Some states, such as Pennsylvania, impose a penalty of up to five years imprisonment for multiple convictions of driving under the influence (DUI) at the highest blood alcohol content (BAC). Individuals who receive this penalty thus fall under §922(g)(1), and they are ineligible to purchase or possess a firearm.

Last month, in Holloway v. Attorney General, the Third Circuit upheld the statute’s validity against a Second Amendment challenge, concluding that a DUI is considered a “serious crime.” Holloway was convicted twice for driving under the influence.  The first charge, in 2002, was eventually dismissed under an accelerated rehabilitation program.  For the second charge, in 2005, he entered a guilty plea for violating the Pennsylvania statute.  Eleven years later, Holloway was denied from purchasing a firearm under §922(g)(1).  The Third Circuit acknowledged that there is no bright line rule for determining whether the offense reaches the “serious crime” threshold, but it analyzed several factors such as the legislature’s intent and the degree of punishment.  Note that this decision is consistent in result but different in methodology from some other recent federal district court decisions analyzing disarmament under the same Pennsylvania statute.

Part of what makes the Holloway case significant is that the Third Circuit had previously broken from other federal circuit courts, in Binderup v. Attorney General, in holding that the felon prohibition did violate the Second Amendment, at least as applied in the case, because the felony itself had been a nonviolent crime that received a lenient sentence.  Binderup receives frequent mention in discussions about the Second Amendment and the felon disarmament, due to its unique place among circuit court decisions on this topic.  It is unclear whether Holloway signals a change in direction for the Third Circuit, or if it merely narrows the applicability of the approach in Binderup. 

Legal Marijuana & Gun Possession

ATF Guidance Documents and Enforcement

In September 2011, the Bureau of Alcohol, Tobacco, Firearms, and Explosives released an Open Letter to All Federal Firearms Licensees (FFL’s), providing regulatory guidance as to the intent of 18 U.S.C. §922(g)(3) and its interaction with state laws that legalize marijuana in some way. The guidance document reminds FFL’s that as the Controlled Substances Act lists marijuana as a Schedule I controlled substance “and there are no exceptions in Federal law for . . . . medicinal purposes, even if such use is sanctioned by State law,” the use of marijuana qualifies an individual under federal law as an “unlawful user” for purposes of 18 U.S.C. §922(g)(3).  Nevertheless, since 1996, at least thirty-three states and the District of Columbia have legalized medical marijuana.

In January 2018, the Department of Justice (DOJ) issued a memorandum (the “Sessions Memo”) rescinding all previous guidance regarding prosecutions in medical marijuana states, deferring instead to nebulous “well-established general principles” which included considerations such as “the deterrent effect of criminal prosecution.” This superseded prior DOJ policy (also known as the “Cole Memorandum” from 2013) which focused prosecutions, in relevant part, in “[p]reventing violence and the use of firearms in the cultivation and distributions of marijuana” and deferring to state and local law enforcement for activity beyond the stated scope of DOJ priorities. It is unclear how the shift in DOJ directives after the 2018 memorandum has impacted federal prosecutions of gun possession prosecutions under §922(g)(3) in states with medical marijuana and legalized marijuana, but 2017 statistics indicate that the number of prosecutions under §922(g) generally had already begun to increase following a decline in the period from 2013 to 2015 (the timeframe after the Cole memorandum through the end of the sitting administration). Given the growing resistance among some big city prosecutors to charge for mere possession of marijuana without aggravating factors indicating dealing, the federal prosecutors’ directives appear to be going in a different direction than at least some state prosecutors in areas having the highest incident rates.

William P. Barr became Attorney General in 2019, and announced that he supports “the prosecutorial priorities” that were put in place by the Sessions Memo, which included an emphasis on “violent crime, drugs, immigration, and national security.” The DOJ appears to have turned more of its resources to the prosecution of firearms offenses, prosecutions under §922(g) are at an all-time high, and convictions under §922(g) have risen every year since 2015 (see here).

Gun Permits & Licenses for Lawful Marijuana Users 

Four months before the 2011 ATF Open Letter, Oregon’s highest court, sitting en banc, decided Willis v. Winters, which held that the federal prohibition on firearm possession “by persons who, under federal law, are ‘unlawful user[s] of a controlled substance,’” does not preempt the State’s licensing statute. The Oregon Medical Marijuana Act authorizes medical marijuana use and requires registration of such authorized users, and Oregon state statutes have a “shall issue” regime for concealed handgun licenses.  Several sheriffs had denied concealed carry licenses applications and renewals submitted by medical marijuana registrants, despite their full compliance with the State’s statutory standards for licensing, on the premise that 18 U.S.C. §922(g)(3) preempted the State’s licensing statute – arguably, issuance of a license under the circumstances would violate §922(t)(3) and §922(a)(6) (which prohibits false statements on background check forms and similar actions).  The Willis court, however, held that under Oregon’s statutory code, the sheriffs are statutorily-bound “to issue CHLs to qualified applicants, without regard to the applicant’s use of medical marijuana.” Because the licensing statute proscribes the concealment of firearms and “is not directly concerned with the possession of firearms,” it does not interfere with the full enforcement of the Federal statute.  The court explained:

[I]t is possible that the sheriffs in this case could themselves enforce section 922(g)(3) of the federal Gun Control Act against medical marijuana users who possess guns in violation of federal law. The federal act makes such possession illegal, the sheriffs generally are authorized to enforce federal as well as state law, and no state law prohibits the sheriffs from taking such enforcement actions. But it appears that the sheriffs also wish to enforce the federal policy of keeping guns out of the hands of marijuana users by using the state licensing mechanism to deny CHLs to medical marijuana users. The problem that the sheriffs have encountered is that Congress has not enacted a law requiring license denial as a means of enforcing the policy that underlies the federal law, and the state has adopted a licensing statute that manifests a policy decision not to use its gun licensing mechanism for that purpose: State law requires sheriffs to issue concealed gun licenses without regard to whether the applicants use medical marijuana.

In other words, the sheriffs cannot deny concealed handgun licenses to medical marijuana registrants, but they are free to arrest those registrants if they do, in fact, possess a handgun.  Federal law does not mandate the use of state gun licensing schemes in enforcing §922(g)(3), nor, the court held, could Congress do so without commandeering “the policy-making and enforcement apparatus of the states.” This decision remains good law in Oregon.

The Willis decision garnered attention from both marijuana advocates and pro-gun advocates, but other cases since then have been trending in the other direction, and the federal classification of marijuana as a Schedule I drug under the Controlled Substances Act continues to give concern to the courts and create confusion for firearm owners who may use medical marijuana in the (majority of) states that have now legalized its use.  For a recent example, in Bradley v. United States, 402 F.Supp.3d 398 (N.D. Ohio, Aug. 14, 2019), a gunowner wanted to register for Ohio’s medical marijuana program and claimed that §922(g)(3) prevented him from doing so, thereby violating his Second Amendment rights, as well as the Equal Protection clause.  Bradley was diagnosed with post-traumatic stress disorder (PTSD) but was barred by federal law from participating in Ohio’s medical marijuana program because he was in possession of a firearm. The court rejected his claims, in part because he faced no imminent threat of prosecution (lacked standing) and partly because his Second Amendment claim was implausible.  The court cited numerous cases from other district and circuit courts consistently holding that §922(g)(3) did not violate the Second Amendment, including situations where marijuana consumption would have been legal under state law, yet the courts affirmed “the constitutionality of §922(g)(3) under the Second Amendment” in that context.

The Sixth Circuit reached the same conclusion in United States v. Bellamy, 682 Fed.Appx. 447 (6th Cir. 2017) (unpublished), holding that §922(g)(3) applied even if defendant held a state-issued medical marijuana card.  At the same time, Bellamy did not include a Second Amendment claim, but was decided on statutory and preemption grounds.

Does the Number of Guns Matter?

A pair of recent reports address the number of firearms being manufactured and already in circulation: one from the ATF (a 2019 AFME report/update on manufactured, imported, and exported guns for 2017), which, along with previous ATF annual reports, furnished part of the basis for an industry annual report published by the National Shooting Sports Foundation (NSSF) on December 4 (see also here for a nice brochure-style report with colorful tables).  The two big takeaways are that the NSSF now estimates there are 17.7 million “modern sporting rifles” in circulation (AR-15’s and similar long guns), and 423 million firearms total in the U.S. – the latter being a significantly higher number than major news outlets, nonprofits, criminologists, or public health researchers have been using for the existing stock of firearms.

The NSSF and the pro-gun blogs touted these numbers as having political significance, either because the numbers are so large now that (Democratic) proposals for mandatory buybacks seem fiscally infeasible and administratively impractical, even for assault rifles, or because the numbers suggest that bans and buybacks are less politically viable than anyone had imagined.  (The gun control blogs were strangely silent about these numbers, despite the attention and discussion they received by pro-gun writers).  For gun control advocates, of course, larger numbers merely raise the sense of urgency for curbing the production and sale of more guns.

Apart from political realities and policy alternatives, these reports raise some questions about whether the number of guns matters for courts, and whether it should.  On the one hand, could the number of assault rifles (or some other subcategory of guns) get high enough to normalize/mainstream a weapon enough that courts would invalidate a ban on that type of weapon, at least partly due to the sheer number in circulation?  Does the current stock of firearms play a part in the proposed “history, text, and tradition” approach, or does that approach only look nostalgically at previous eras for guidance?  The pending cert petition in Worman v. Healey involves a challenge to a state ban on assault rifles, and the arguments include a point about how many people already own these weapons. The number of guns in circulation also came up in the district and circuit court opinions in Kolbe v. Hogan.   Joseph Blocher discusses the too-common-to-ban idea in his new article Bans.

On the other hand, this raises the opposite question as well: whether there is a maximum threshold for Second Amendment protection in terms of sales.  Suppose, for example, that in a few years there were a billion guns in circulation in the United States – say, three or more for every person in the country – would it still count as an infringement on the Second Amendment to ban all sales of new firearms?  Could there be a Second Amendment saturation point, either in terms of number of guns already available, or rate of ownership (suppose hypothetically that in twenty years, 90% of Americans have firearms in their homes), a point at which a ban on production or new gun sales could not infringe on the right to bear arms – because there are plenty of arms available?  For bans on manufacturing or new gun sales, the notion of infringement becomes far less relevant at a certain point.  The Second Amendment’s purposes are satisfied.  Of course, other government actions could still constitute an infringement, like a government confiscation or severe restraints on use.  The Second Amendment is unique within the Bill of Rights for tying a right to an object, and the logical implication of that is that the object could eventually become so abundant (or over-abundant) that banning new production of the item would pose no practical risk of infringement on a right to acquire, keep, or bear them. Guns last a long time – a person’s lifetime, if the gun receives routine maintenance and care.  There must be some threshold, therefore, where replenishing the supply is superfluous from a Second Amendment standpoint.

Naturally, there is room for debate about where the line should be, but the debate would not be meaningless.  Advocates can make rational arguments for where a court should draw the line, and a court could have good reasons for drawing the line at X.  There are some nuances to consider: banning new production normally raises the market price of the item on the secondary (used) market, so a ban on new production would, theoretically, raise the resale price of existing guns, though it is not clear how much, if we are already at a point of a flooded market and super-abundant stockpiles of a long-lasting, reusable item.  As far as I can tell, price changes on the used firearm market resulting from major fluctuations in production have not received much (or any) academic study to date.  Even if the resale value of guns rises, this could be a net wealth increase for those who already have guns, which in this hypothetical scenario is most of the eligible population – especially if used guns are currently undervalued by the market due to overproduction of new guns. Oversupply of a consumer item can have complex effects on prices or cause certain types of market failure.  And resale prices are not the only concern here – the Second Amendment protects the rights of people to keep and bear arms, but not necessarily a right to resell them.

The extreme position for line-drawing would be the functional equivalent of universal armament (something close to 100% of the eligible adult population), and this is a helpful benchmark for the sake of discussion.  Nevertheless, there is reason to think the Second Amendment could be functionally infringement-proof at some point before that.  I would suggest, for the sake of symmetry, that we reach Second Amendment saturation not at a billion guns, nor at 90% ownership, but at the point when the guns in question are clearly too common for a government buyback or confiscation to be feasible.

Thus far, I have been distinguishing between a ban on new production/new sales and a ban on possession/resale.  Suppose, however, a scenario with a proposed ban on possession, either of guns in general, or a certain type of gun, or even large-capacity magazines.  If the primary problem with this proposed ban on possession is that too many people already own the guns in question, or that the guns are already too abundant, then it is arguable that they are abundant enough to ban for new production without infringing on the Second Amendment.  If some other issue – besides abundance – is the primary legal problem with a ban on possession, then it may not trigger saturation concerns.  While the saturation argument is mostly relevant for bans on new production, it is not irrelevant for discussions about bans on possession.

The number of guns in circulation also comes up in discussions about smart guns (I have a draft article about this topic here).  On the one hand, even if gun manufacturers started producing smart guns exclusively, the new ones would be insignificant in number compared to the existing supply of traditional-mechanical guns, though this would slowly change over the course of a century or so, if current purchase rates continued.  On the other hand, the controversial (now repealed) New Jersey statute that banned the sale of traditional firearms once any smart guns become available was, in fact, a ban on new production of traditional firearms – for which Second Amendment saturation would be relevant, at least in the future.

New Decision in a (Very) Old Case: City of Gary v. Smith & Wesson Corp

On November 26, the Indiana Supreme Court denied review in an important case regarding tort liability for gun manufacturers and the Protection for Lawful Commerce in Arms Act (PLCAA): City of Gary v. Smith & Wesson Corp. The latest ruling leaves in place a Court of Appeals decision from last May, which in turn means that the case can finally proceed to trial.  This puts the case in the same procedural status as Remington v. Soto, in which the U.S. Supreme Court denied review two weeks earlier (the Indiana Supreme Court may in fact have been waiting for the SCOTUS decision about Soto before rendering its own ruling).

Finally proceed to trial” is particularly appropriate for this case, which was originally filed in 1999 – the case itself predates the enactment of the PLCAA, the counterpart Indiana immunity statute, and the Supreme Court’s landmark decision in Heller. Like the pending case in Connecticut between the Sandy Hook victims’ families and Remington-Bushmaster, the City of Gary litigation centers around the seemingly narrow statutory exceptions in the PLCAA and seeks to hold firearm manufacturers liable for the injuries involving their products. (A quick overview of the relevant statutes and leading cases in this area is here.)  The City of Gary litigation could eventually be even more significant than Soto for the future of the PLCAA and gunmaker liability.

First, the lawsuit by the City of Gary lists several of the largest gun manufacturers as defendants – besides Smith & Wesson, defendants include Beretta, Browning, Colt’s, Glock, Hi-Point, Phoenix Arms, Sturm Ruger, and Taurus (and originally, other manufacturers and several local gun dealers, though they are no longer parties), while the Sandy Hook lawsuit targets a narrower range of defendants.  This means that a larger representation of the industry is directly involved in the case.

Second, the case is much older than the Connecticut litigation, and has been through several rounds of dismissals and reversals already, meaning the state courts have already addressed a number of the high-stakes legal questions surrounding this type of litigation that have not yet arisen in Soto, including the applicability of a state preemption law, attorneys’ fees, the Second Amendment, and concerns about separation of powers.

Third, the plaintiff in the Indiana litigation is a municipality, seeking redress for the crime problems it suffers as an externality of the firearm manufacture and distribution system.  If successful, the case could potentially have broader applicability than the Connecticut litigation, as most large urban centers across the United States have suffered the same type of harm as the City of Gary, albeit to varying degrees.  Cases like this reach a broader group of defendants for a broader set of injuries than a lawsuit relating to one specific mass shooting.  The State of Indiana has intervened in the suit in opposition to the municipality, which adds an interesting legal twist (city-versus-state) to the case. And at an earlier stage in the litigation, the United States government also temporarily intervened as a party, in support of the PLCAA’s constitutionality.

Fourth, the theories used by the City of Gary to fit under a statutory exception in the PLCAA might be applicable in a wider range of contexts than the specific consumer protection statute implicated in Soto.  Like Soto, the Indiana case includes a claim about the advertising of guns, but it also includes claims about negligent distribution (like earlier New York litigation that successfully circumvented the PLCAA) and negligent design.

The 20-year procedural history of this case is tortuous but thought-provoking (a helpful quick-glance timeline is included here) – the case has been dismissed three times, but then revived in each instance.  In 1999, the City of Gary, which had a notoriously high rate of violent crimes for a midwestern city, joined what was then a wave of other urban centers around the country in suing the major gun manufacturers for public nuisance and other crime-related injuries.  The gun litigation drew inspiration from the litigation between the states and the tobacco industry in the mid-1990s. After the second time the case was reinstated after a dismissal, in 2001, the Indiana state legislature passed a statute granting tort immunity to gunmakers and dealers – a state precursor to the federal PLCAA, which Congress enacted in 2005.  In 2007, after some more procedural twists, the Indiana Court of Appeals found both the PLCAA and the state immunity statute inapplicable to the case.  The litigation essentially went dormant from 2009 to 2015, when the Indiana state legislature amended its own gunmaker immunity statute to apply retroactively to August 26, 1999, four days before the City filed its.  This prompted the manufacturers to file another motion to dismiss, which the trial court granted in 2018, though it denied the manufacturers’ petition for attorneys’ fees.  The City appealed this fourth dismissal, and the Indiana Court of Appeals reversed the dismissal again, in May 2019.  This is the decision that the Indiana Supreme Court declined to take on Nov. 26.  (For more background, an older press release by plaintiff’s counsel is here and their release about the latest decision is here).

New NICS Case: Snyder v. United States, Part II

A previous post explained how Steven Leroy Snyder failed his firearm purchase background checks on three occasions, but he passed the same background check when he renewed his concealed carry permit around the same time. He pursued both administrative remedies with the FBI to challenge the gun purchase denials and correct whatever inaccurate information was in the FBI’s databases regarding him. Frustrated by the lack of progress on this front, Snyder sought relief in federal court.  Snyder brought his lawsuit under 18 U.S.C. § 925A, which provides that an otherwise lawful purchaser denied a firearm due to an error in the background check system “may bring an action against the State or political subdivision responsible for providing the erroneous information, or responsible for denying the transfer, or against the United States, as the case may be, for an order directing that the erroneous information be corrected or that the transfer be approved, as the case may be.”  This avenue for judicial redress runs as another parallel track to the VAF process and the administrative procedure for challenging a denial, and Snyder availed himself of all three.

The judicial process under § 925A, however, raises the complicated relationship between state and federal governments in the background check bureaucracy.  According to this statute and § 922(g), federal firearm prohibitions for criminal convictions depend on the definition of “conviction” in the jurisdiction where the criminal proceedings occurred – in this case, Washington State.  The relevant Washington statute, in turn, defines “conviction” as including not only guilty verdicts and pleas, but also “includes a dismissal entered after a period of probation, suspension or deferral of sentence.”  On the other hand, a subsequent pardon removes the conviction.  For purposes of firearm prohibition, the same Washington statute says, “Where no record of the court’s disposition of the charges can be found, there shall be a rebuttable presumption that the person was not convicted of the charge,” but this is not binding on the federal government.

Federal regulations instruct those wishing to correct inaccurate records in the NICS system (that result in a firearm purchase denial) to first petition the FBI, and if the FBI cannot resolve the issue internally, “[t]he individual may then apply for correction of the record directly to the agency from which it originated.”  An analogous state law procedure is available under Washington statutes to correct inaccuracies in criminal records, but Snyder did not pursue this route.  This is a technical aspect of administrative law that can be bewildering to nonlawyers: an agency in one division of government (in this case, the federal executive branch) may have processes that depend on information from another level or division of government (like local law enforcement), but the former may have no power to correct errors in the information supplied by the latter.

Snyder also asked for an order that the government issue an affirmative approval on his previously delayed background checks – but the court observed that under 28 C.F.R. § 25.6(c)(1)(iv)(B), the dealers were already free to complete the sale, and had been free as of three days after the “delayed” response on the background check. This point occasions one of the courts two references to the Second Amendment: “There is no showing that the United States violated his second amendment rights by issuing the ‘delayed’ response” – given that he could have purchased the firearms already.  Of course, a few years have elapsed – it is possible that the specific guns Snyder wanted to buy are no longer available from those dealers, or that those dealers are out of business.

Finally, Snyder wanted the court to order the issuance of a UPIN to streamline future gun purchases.  While the VAF process normally offers this, Snyder was ineligible for a UPIN under the VAF procedure because of the local (county) arrest record from 1972; but UPINs are not available as a judicial remedy under 18 U.S.C. § 925A.  Snyder lost, but he could start the process anew by trying to correct his local criminal records in Washington state, to clear up the 1972 arrest record.  Then, he could start over with a new VAF application, and wait a year or so for the FBI to process it.  Legally, the court made the correct decision, though Snyder’s frustration with the bureaucratic errors and the government’s inability (legal incapacity) to correct the errors is understandable.  His state now has universal background checks, meaning that even if Snyder were to purchase a used firearm from a private seller (a neighbor or acquaintance), he and the seller would need to complete the transaction through a licensed dealer, who could conduct a NICS background check on the purchase.

The most mysterious part of this case is that Snyder passed a NICS background check (twice) to obtain and renew his concealed carry license – it is hard to explain the discrepancy.  One explanation might be different examiners at the FBI processing his background checks at different times – perhaps they would reach different conclusions.  It is also conceivable, though I have never seen any documentation of this, that NICS examiners take a more lenient approach in background checks for concealed carry permits than they do for firearm purchases.  A third explanation, specific to Snyder’s case, would be that it was simply a matter of timing: a literal parsing of the responses to him from the FBI indicate that some inaccurate prohibiting information on file in 2013 and 2016 resulted in those delays and denial, and perhaps his appeal and VAF application, or his 2018 lawsuit, prompted the NICS personnel to correct that information, but also to uncover the previously-unknown 1972 arrest record, which was the basis of his 2018 VAF denial and his new “delayed” status regarding the 2013 and 2016 purchase applications.  A VAF application allows the NICS staff to proactively search for criminal records regarding the applicant, whereas the normal NICS background check relies entirely on information already submitted to and stored in one of three databases.  Snyder’s 2017 renewal background check might have fallen sometime between the clearing of the previous inaccurate information from the NICS database, and the new discovery by NICS of the 1972 arrest record from Washington; and his original carry license would have been five years earlier, in 2012, and may have predated the full implementation of the state’s current system of checking with NICS (the Washington concealed carry statute has been amended repeatedly in the last fifteen years).  It is also possible that the local sheriff’s office staff processing his concealed carry permit/renewal simply approved his permit despite a “delayed” response from NICS.   At least one information site states that Washington’s concealed carry background checks do not “qualify” as NICS background checks, though the state statute requires a NICS check.  In half the states, however, a concealed carry permit allows the permit holder to skip the NICS background check when making gun purchases from a licensed dealer.

As a side note, NICS background checks numbers are the source (proxy) for most estimates of annual or monthly nationwide new gun purchases, and surges in gun sales are a common talking point in firearm policy discussions.  This case illustrates a problem with these numbers – many of the NICS background checks are in fact for concealed carry permit applications or permit renewals, not new gun sales, as explained here and here.  In Snyder’s case, two NICS checks would have been for his concealed carry permit and renewal, three for his attempted gun purchases, and at least two NICS inquiries were for his VAF application and status check.

New NICS Case: Snyder v. United States, Part I

A recent federal district court decision from Washington State, Snyder v. United States, highlights the complex interplay of gun rights and the background check bureaucracy.  The October 30 decision brings together several areas of Administrative Law – judicial recourse (available relief) for adverse agency actions, cooperation and split responsibility between state and federal agencies, administrative reconsideration procedures, statutory default provisions for agency delays, and how agencies obtain information and correct mistaken information. In the background, of course, is the Second Amendment – the complaint does not include a Second Amendment claim, but the court mentions it in passing twice in the opinion.  The court’s ruling is on cross motions for summary judgment, deciding in favor of the government, and against the would-be gun purchaser.

Snyder tried to purchase a gun from a licensed firearms dealer twice in October 2013, but he did not pass the required federal background check – NICS, the background check system run by the FBI, issued a “delayed” response and did not approve the purchase.  The same thing happened again to Snyder in April 2016 – this time the background check yielded an outright denial.  Nevertheless, Snyder was able to obtain a concealed carry license in Washington, which he was able to renew in 2017.  As in many other states, he had to pass a federal background check through the FBI’s NICS database to obtain his concealed carry license, and to renew it.  This contradictory result furnished the basis for Snyder’s lawsuit, and it highlights some bureaucratic aberrations that would appear to be a mistake or glitch to an outside observer, but are in fact merely a feature of a complex decision-making system that draws information from different sources at different times, so that the same query may yield different answers on different occasions.  A second part in this series will return to this contradiction and attempt to explain what happened in this instance.  The complaint does not indicate whether Snyder has been able to buy guns since 2016, or whether he already owned other guns, which would be relevant for discussing the degree of infringement on his Second Amendment rights.  The fact that he has been litigating his denials and delays up to now suggests that he has been unable to initiate new purchases in the meantime, but as the court points out, the dealers were free to sell him the three guns he was originally unable to purchase as of June 2018.

According to a 2016 Audit by the Office of the Inspector General, when the FBI does NICS background checks, it has a 99.8% accuracy rate in denials (it is impossible to assess the number of inaccurate approvals, because federal law requires the deletion of NICS records within 24 hours of an approval).  To put things in perspective, denials occur in less than 1% of the background checks, which means problems like Snyder’s are disproportionately rare; on the other hand, in a year when there are 13 million background checks, around 780,000 are denials, and more than 15,000 of these might be mistakes.  At the same time, there is widespread underreporting from the states to the NICS center, and in Washington, different state officials would have conducted the NICS background checks for Snyder’s purchases and his carry permits, and these officials are statistically unlikely to have reported anything back to NICS.  NICS would not have been on notice that background checks in Washington were yielding inconsistent answers on different occasions.

Besides a statutory provision for judicial review of NICS decisions (the type of lawsuit brought here), the FBI has two parallel-track administrative processes for those who believe they’ve received an erroneous denial on their NICS background check, the Voluntary Appeal File (VAF) application and a firearm purchase denial “challenge” (see also 28 C.F.R. § 25.10)  For a VAF, the individual merely submits a release form to access their full criminal history, along with fingerprints and some other paperwork or authorization.  After review of the VAF, the FBI may correct its own records and notify the dealer that it approves the sale.  The FBI will also issue the VAF applicant a Unique Personal Identification Number (UPIN); NICS maintain information about the UPIN holder to prevent future erroneous denials or extended delays of a firearm transfer (the individual will still need to complete background checks for future purchases, but the UPIN should streamline the review and avoid erroneous denials, analogous to TSA pre-screening clearance).  The purchase denial challenge is a classic administrative appeal, and itself makes two alternate procedures available to the wrongfully denied individual, under 28 C.F.R. § 25.10(c) and (d) respectively. The individual can start either with the FBI directly or with a state/local law enforcement agency in states where local law enforcement function as a type of bureaucratic middleman (technical term: “point-of-contact” or POC) for background checks, submits documentation to rebut the incorrect information in the original record archive that fed an inaccuracy into the NICS system, and then initiates a chain of inter-agency notifications that the correction has been made.  At risk of oversimplifying, a person would use the VAF process to fix a recurring mistake, like being mixed up with someone else who has the same name in the same state. The administrative challenge process, on the other hand, is for fixing a specific incorrect record, such as a data entry error by local law enforcement that coded your one-time arrest under the wrong grade or type of offense (misdemeanor versus felony,  class B versus class C), or where your conviction was reversed on appeal but the records do not reflect this.

Snyder filed both an administrative challenge and a VAF in May 2016, a few weeks after his second purchase denial, and included a copy of his concealed carry permit, showing that he had passed the NICS background check for the latter, and therefore should not have failed the NICS background check for his attempted gun purchases.  The government confirmed receipt but informed him that they were currently processing VAF’s received in July 2015 – ten months before (news reports at the time indicated the FBI had simply stopped processing appeals).  More than a year went by, and then Snyder checked on the status of his appeal in November 2017.  The government responded that there was no decision on his appeal yet, and that they were then processing VAFs from November 2015 – in other words, they were now twenty-four months behind, instead of ten months behind. (According the FBI’s website, at the time of this writing, it is currently reviewing VAF cases from July 2018).

Snyder then filed his lawsuit in June 2018, and two months later, the federal agency notified his counsel that his firearm background check was in “delay status.”  The notice explained that the original prohibitive information was resolved, but that it had uncovered another potentially prohibitive arrest lacking a final disposition – an arrest in 1972 for possession of stolen property.  This meant that he was ineligible for the VAF process, but he could still submit evidence that the arrest had been expunged, or that his firearm rights had been restored by a court.  The federal government made unsuccessful attempts to find out from local law enforcement what had been the outcome of the arrest in 1972; it received no answer.  As mentioned above, the FBI has a procedure for challenging an erroneous denial of a firearm purchase, but there is no procedure for challenging an erroneous delay.

Under the administrative law doctrines of exhaustion of remedies and final agency action, this dichotomy is significant. Notwithstanding the statutory cause of action discussed below, normally an erroneously-denied firearm purchaser could not seek judicial review without first filing an administrative appeal of the denial, though if the agency will admit that it has ceased processing such appeals, this could come under the “futility” exception to the exhaustion requirement – perhaps.  On the other hand, a “delayed” decision from NICS would not trigger the exhaustion requirement before judicial review, because there would be no process to exhaust; yet a “delayed” response from an agency would also normally not constitute a final agency action, which in turn would also preclude judicial review.  If this seems a little circular, the statutory framework in this case confuses this analysis even further, because there appears to be an unusual statutory workaround to this problem.  I say “appears,” because it turns out that the statutory workaround will often prove unsuccessful due to the federal-state jurisdictional interplay in the NICS system.

Snyder claims there must have been a misidentification because he had no history that would make him ineligible for a firearm purchase.  Snyder’s basis for asking the court to order the government to order the completion of the uncompleted firearm transfers from 2013 and 2016 was that there was no conviction, and therefore no basis for a denial as a prohibited person.  He also wanted the government to correct its own records.  The government’s motion, on the other hand, pointed out that an indefinitely delayed status (longer than three business days) meant that a licensed dealer could already proceed with the sale (this rule is sometimes called the “Charleston loophole”), so there was no violation of his rights.  In addition, the arrest records Snyder wants corrected were local law enforcement records, not federal NICS records, so the federal government had no power to make such as correction.

New Case: Powell v. State of Illinois

A federal district court decision from September 30 raises some novel legal issues regarding firearm policy (the case is captioned Powell v. State of Illinois but is still at the pre-trial stage). On September 30, 2019, U.S. District Judge Joan Gotschall issued a breathtaking 34-page opinion denying in part the defendants’ motion to dismiss; it allows the case to move forward to discovery.  (See news coverage of the opinion here and here). The plaintiffs, representing a class of Chicago African American school children, link inexcusably high levels of gun violence with childhood learning disabilities and a lack of reasonable accommodations. The statutory basis for the claim is the Americans with Disabilities Act (ADA), along with the Illinois Civil Rights Act; the children-class representatives suffer post-traumatic stress disorder (PTSD) and other learning disabilities due to daily exposure to gun violence, including witnessing the shooting deaths of immediate family members. The plaintiffs are seeking injunctive relief in the form of state gun regulations, primarily directed at gun dealers, “which they contend would appreciably stem the tide of gun violence in Chicago.” (For helpful reporting on the complaint from when it was filed, see here and here).  It is worth reiterating that the September 30 decision, though significant, is merely a ruling on a motion to dismiss – a trial on the merits is still in the future.  Most cases settle before trial, so this case could end in a pre-trial settlement sometime in the next few months, without generating a verdict on the merits or subsequent appellate decisions.

The case focuses on Chicago, but it highlights a pervasive problem for urban communities nationwide – regular exposure to neighborhood gun violence is a significant factor in educational inequality, because it interferes with learning, educational achievement, and school operations.  The idea behind the case is that concentration of gun violence in neighborhoods beset with poverty is the foreseeable and inevitable consequence of an overly abundant supply of easily accessible firearms. Gun violence and homicides have reached epidemic levels in recent years among minority teenagers in the United States, and the constant disruption, trauma, and fear that go along with such day-to-day violence significantly affect the educational and psychological development of urban youth, and thus their eventual educational and career achievements.  The plaintiffs’ complaint and brief draw heavily from a growing body of academic research from sociologists, psychologists, educational theorists, and public health researchers to support these points.  The plaintiffs in this case argue that comprehensive community solutions to reduce gun violence are inseparable from policies promoting educational equality, as decreased gun violence boosts educational achievement and helps the school environment.

The judge’s opinion opens with a simple, sad observation: “It is common knowledge that, as the plaintiffs in this proposed class action allege, gun violence has ravaged the City of Chicago for decades and that the violence is concentrated in predominately African-American neighborhoods.”  Other courts have acknowledged this as well.  Chicago has one of the highest rates of gun homicides in the country, and twenty percent of the homicide victims in Chicago are teenagers or younger.  The racial disparity among victims is striking: eighty percent of the murder victims in Chicago are African-American, even though African-Americans are only about one-third of Chicago’s total population; African-American men from age 15 to 34 are only 4% of the city’s population, but they comprise half of the homicide victims.  The national homicide rate is around 5 per 100,000, but the African American neighborhoods in Chicago have rates from 87-180 per 100,000, while the predominately white neighborhoods have homicides very rarely, and in some years, none. Chicago is awash in guns, a large share of which come from seven identifiable gun dealers, either through loosely-regulated but legal sales, or through thefts from these stores (hundreds of guns per year that enter the black market).

This case is interesting from a legal perspective for several reasons.  First, the plaintiffs are claiming a statutory (not constitutional) right to be free from daily gun violence, under both federal (the A.D.A.) and state law.  Second, the case does not directly implicate Second Amendment rights – the plaintiffs are not suing gun owners, dealers, or manufacturers, but instead state officials who are (allegedly) not implementing the firearm regulatory regime mandated in Illinois’ state statutes.  Of course, the injunctive relief that the plaintiffs are seeking are a combination of regulatory and enforcement actions by state law enforcement officials that would raise some Second Amendment issues.  Indeed, the very statute that the plaintiffs want implemented is currently the subject of separate litigation by gun rights groups, claiming that the Illinois FOID law violates (among other things) the Second Amendment.  So, Second Amendment advocates will watch this case closely as it moves forward; some groups, such as the NRA-ILA, have already decried the September 30 opinion on their website.  Another noteworthy feature of the case is that the plaintiffs are not seeking monetary damages, except potential attorneys’ fees if they prevail on their injunctive relief claims.

A third reason this case is interesting, from a legal standpoint, is that the plaintiffs are seeking, at least primarily, the promulgation of regulations, rather than enforcement actions.  In the field of administrative law, lawsuits to compel government agencies to undertake specific enforcement actions are notoriously difficult to win, both on the merits and on standing grounds.  After Massachusetts v. EPA, however, a distinction has emerged between actions to compel agency enforcement, versus actions to compel agencies to promulgate rules.  The later, under Massachusetts, is a stronger claim, especially for purposes of plaintiffs establishing standing, but potentially also on the merits, if there is a clear enough statutory mandate for an agency to regulate.  Another similarity to Massachusetts v. EPA is the complex issue of standing to sue, which was the focus of the defendants’ motion to dismiss and a large section of the opinion – as in Massachusetts, a case about the EPA’s refusal to regulate carbon dioxide emissions and the resulting effects of rising sea levels – the plaintiffs can articulate concrete and particularized injury-in-fact (medically diagnosed post-traumatic stress disorder and its direct effects on school behavior and learning), but the alleged injury is the combined effect of innumerable independent actors and factors, which in the aggregate are an indirect but foreseeable result of a government agency’s refusal (or failure) to regulate the activities of these actors.

From a more abstract policy or political science standpoint, the opinion (and even more so the original complaint) highlights the tradeoffs with guaranteed rights, such as Second Amendment rights – the idea that protection of any right means a restraint on another individual, group, or entity.  Or, from the other angle, protection of the rights of disabled children in Chicago (the plaintiff class in Powell) would seemingly require injunctive relief that would entail restraints on the gun trade that many perceive as an infringement on the right to bear arms.  If the right to bear arms includes an individual right to buy and keep firearms for self-defense, an implication of this right might be a readily accessible retail market for acquiring guns.  The market infrastructure necessary to make guns widely available for purchase, in turn, means there will inevitably be a certain amount of straw purchasers, dealers who knowingly violate gun laws, gun thefts, a secondary market for used guns that blurs into the black market, and individuals who become legally ineligible for gun ownership (statutorily “prohibited persons”) after they are already in possession of some firearms. These are the types of spillover effects that the plaintiffs outline in their complaint, and that the relevant state statutes (Illinois’ FOID Act) were supposed to address, at least in part.  It will be interesting to see how the case progresses, and if the case settles or results in a favorable verdict for the plaintiffs, if the state is in fact able to implement the changes the plaintiffs seek.

Firearms Law Workshop Mini-Symposium, Part I: Going Gunless

I returned home to Houston from the workshop at the Duke Center for Firearms Law on Saturday morning, and reached my home just as the news reports broke from El Paso about the massacre at the Wal Mart there.  When I woke up the next morning, there were news reports about a similar atrocity in Dayton, OH.  The same weekend, the city of Chicago had 52 shootings (numerous separate incidents), with seven fatalities, its deadliest weekend so far in 2019.  Mt. Sinai Hospital had to divert ambulances to other trauma centers because it reached its maximum capacity.

The paper I submitted for the workshop, Going Gunless, is about conscientious people who feel it is time to renounce gun ownership for good. We need a new culture, a different mindset about relying on force and violence.  The paper proposes a system for voluntary government registration and certification of non-gun-owners, those who for religious, moral, social, or philosophical reasons want to be ineligible to buy or possess firearms for a period of five or ten years.  The voluntary legal ineligibility would also apply to state permits and licenses for buying, owning, carrying, or hunting with firearms.  It would constitute a waiver of all Second Amendment rights, with a government-issued certificate or card that the person is legally “gunless.”  Firearm policy in the United States is subject to longstanding political gridlock; I believe that political consensus is easier to build if people first personalize and internalize the issue.

The proposed system is analogous to both the registration of conscientious objectors during wartime conscriptions, and the newer suicide prevention laws whereby individuals can add their names to a do-not-sell list for firearm dealers – though the proposal made here is broader and more permanent.  The original draft of the Second Amendment contained an exemption for those “religiously scrupulous of bearing arms,” also known as the conscientious objector exception, for Quakers, Mennonites, Plymouth Brethren, and other groups that abstained from killing others – not only in war as conscientious objectors, but also in using lethal force to defend oneself, one’s family, or (especially) one’s property.

Voluntary registration, with official certification, would serve three important purposes.  First, this would help create social identification markers for the gunless-by-choice movement, something that historically has been missing; formal signals and labels of identification with a movement are necessary for a movement’s success, especially with prohibition or abstinence movements.

Second, registration and certification as gunless would be a personal moral commitment marker; all societies provide ways for solemnizing one’s vows and solidifying one’s resolve on serious, lifelong moral decisions.  The impressive political success of the Prohibition Movement followed a century or more of the Temperance Movement, during which large numbers of Americans signed formal pledges to abstain completely, and permanently, from alcohol (teetotalers).  Those who took the pledge joined local chapters that were close-knit and provided interpersonal accountability and fellowship.  There is a robust academic literature about how gun ownership is not only a component of a “gun culture,” but also becomes part of the owner’s sense of identity.  My goal is to have conscientious non-ownership be something that people internalize as part of their identity as well.

Third, certification allows for a market-signaling effect, useful information that can trigger a beneficial response from the private sector, especially the insurance industry, but also socially-conscious firms.  Market responses, in turn, provide useful information about otherwise hotly-debated beliefs, such as whether guns in fact enhance or reduce safety for individuals and public places; insurers have the financial incentive to make accurate predictions about risk and safety for purposes of pricing their policies or premiums, and better information bolsters accuracy in risk assessment and risk management.  Currently there is no way for insurers or other firms to identify who is a gun owner and who is not; while the registration program would not provide complete information, it would provide reliable information about a certain sector of the population, which would be an improvement over the current state of uncertainty.

[Ed. Note: This post is part of a series on the papers presented at the Center’s first Firearms Law Works-in-Progress Workshop on August 2, 2019.]