Protecting Gun Safety Laws in Appellate Courts SHARE The Supreme Court lets lower court victories stand—for now.

With only a few exceptions, since 2008 the US Supreme Court has declined to grant review in over 150 Second Amendment cases. This includes numerous cases where lower courts upheld critical gun safety laws. Among the many cases in which the Court has denied review are gun lobby–backed lawsuits pushing for a dangerously unlimited interpretation of the Second Amendment—one that ignores the careful safeguards expressed in the Supreme Court’s landmark Second Amendment case, District of Columbia v. Heller.

By declining to review most lower court decisions that followed Heller and upheld federal, state, and local gun laws, the Supreme Court has reconfirmed that the Second Amendment is not an obstacle to gun safety. Although there are clues that some Supreme Court justices wish to revisit gun rights and disturb the constitutional status of laws regulating guns in public and military-style weapons, for now, the moderate approach has prevailed, allowing communities to pass lifesaving measures supported by the overwhelming majority of Americans.

RECENT ACTIVITY IN THE COURTS

In 2008, the Supreme Court issued its decision in Heller, and in 2010, the Court decided McDonald v. City of Chicago, which held that the right recognized in Heller extends to state and local governments. McDonald involved a Chicago law nearly identical to the one struck down in Heller and did not expand the substantive scope of the Second Amendment (except to find it applies to states and localities). The Supreme Court has weighed in on a Second Amendment case only two times since 2010. The first was in Caetano v. Massachusetts, involving a Massachusetts law that prohibits private possession of stun guns. In a short, unsigned opinion the Court did not break any new legal ground or rule that stun guns are protected by the Second Amendment. Instead, the Court’s decision in Caetano simply vacated and remanded the Massachusetts Supreme Court’s decision upholding the constitutionality of the state’s stun gun ban, and directed the state court to apply Heller.



Second, in 2019, the Supreme Court heard a case brought by a state affiliate of the NRA called New York State Rifle & Pistol Association v. City of New York (“NYSRPA”). However, the Court ended up not issuing a Second Amendment ruling in NYSRPA. Instead, by a 6–3 vote, the justices found that that the case was moot based on New York City’s repeal of the challenged handgun transport restrictions. Note, however, that four justices joined separate opinions suggesting that they might support issuing an expansive Second Amendment ruling in a future case. A few of these justices previously endorsed radical interpretations of the right to keep and bear arms as having few limits. The NYSRPA case showed that there are some members of the Supreme Court who would likely vote to overturn firearm regulations previously accepted as constitutional, although for now, a more moderate approach has prevailed.

IN THE COURTS Time and again, gun safety laws have been proven constitutional. Our attorneys defend lifesaving gun laws and take on the gun lobby in courts around the country, all the way up to the Supreme Court. Learn More

SUPREME COURT CERTIORARI DENIALS

Since the Supreme Court’s 2008 decision in the Heller case, lower courts across the country have been inundated with costly and time-consuming challenges to state and local gun laws. However, following the Supreme Court’s guidance in Heller, the lower courts have consistently upheld these laws. These decisions have found that challenged gun safety measures are consistent with the sensible regulations the Supreme Court endorsed in Heller and have successfully protected people from gun violence while still allowing responsible gun use by law-abiding citizens. Since 2008, there have been over 1,400 Second Amendment cases that challenged gun laws, but in most cases the gun safety law or criminal conviction at issue has been upheld.

Many of these Second Amendment challenges to firearm laws make their way to the Supreme Court, in the form of a request that the justices review a lower court’s ruling upholding a gun safety law. This is called a request for Supreme Court certiorari. However, the Court has generally denied these requests and refused to hear these cases, with the exception of the NYSRPA case and others described above. By declining to hear most appeals, the Supreme Court has thus far protected lower court decisions upholding gun safety laws and helped keep these strong laws on the books. For example, the Supreme Court has refused to hear cases that:

Challenge restrictions on concealed and open carrying of firearms in public. For example, the Supreme Court denied review in Peruta v. California, a case in which the Ninth Circuit upheld California’s strong concealed carry permitting standards, and determined that the standards are constitutional because the Second Amendment does not protect the right to carry concealed firearms in public. Similarly, the Court denied review in Kachalsky v. Cacace, a case in which the Second Circuit upheld a New York law prohibiting the issuance of a concealed carry permit unless the applicant can demonstrate that good cause exists to issue the permit, as well as in Woollard v. Gallagher and Drake v. Filko, cases challenging similar concealed carry permit schemes in Maryland and New Jersey. These denials make clear that states retain the discretion to pass strong laws regulating the carrying of firearms in public even after the Heller decision.





For example, the Supreme Court denied review in Peruta v. California, a case in which the Ninth Circuit upheld California’s strong concealed carry permitting standards, and determined that the standards are constitutional because the Second Amendment does not protect the right to carry concealed firearms in public. Similarly, the Court denied review in Kachalsky v. Cacace, a case in which the Second Circuit upheld a New York law prohibiting the issuance of a concealed carry permit unless the applicant can demonstrate that good cause exists to issue the permit, as well as in Woollard v. Gallagher and Drake v. Filko, cases challenging similar concealed carry permit schemes in Maryland and New Jersey. These denials make clear that states retain the discretion to pass strong laws regulating the carrying of firearms in public even after the Heller decision. Challenge the constitutionality of laws prohibiting gun possession after conviction of a felony . domestic violence offense, or serious misdemeanor. The federal government and many states have laws restricting or prohibiting firearm access after criminal convictions or by people who are subject to domestic abuse restraining orders. These laws have been virtually unanimously upheld by lower courts and the Supreme Court has repeatedly declined to review those decisions. For example, the Court declined to review the Tenth Circuit’s decision in United States v. Reese, which upheld a federal law prohibiting persons subject to domestic violence restraining orders from possessing firearms. The Supreme Court’s reluctance to review these decisions shows that policy-makers have the flexibility to prohibit firearm access by dangerous people.





. The federal government and many states have laws restricting or prohibiting firearm access after criminal convictions or by people who are subject to domestic abuse restraining orders. These laws have been virtually unanimously upheld by lower courts and the Supreme Court has repeatedly declined to review those decisions. For example, the Court declined to review the Tenth Circuit’s decision in United States v. Reese, which upheld a federal law prohibiting persons subject to domestic violence restraining orders from possessing firearms. The Supreme Court’s reluctance to review these decisions shows that policy-makers have the flexibility to prohibit firearm access by dangerous people. Challenge restrictions on machine guns, assault weapons, large-capacity magazines, and other military-grade weaponry. The Supreme Court made clear in Heller that the Second Amendment is not unlimited and does not protect “dangerous and unusual weapons.” Lower courts have followed that direction by upholding numerous laws restricting machine guns, assault weapons, and ammunition capacity. Recently, the Supreme Court denied review in Worman v. Healey, a decision from the First Circuit holding that Massachusetts’s restrictions on assault weapons and large capacity magazines are constitutional under the Second Amendment.





The Supreme Court made clear in Heller that the Second Amendment is not unlimited and does not protect “dangerous and unusual weapons.” Lower courts have followed that direction by upholding numerous laws restricting machine guns, assault weapons, and ammunition capacity. Recently, the Supreme Court denied review in Worman v. Healey, a decision from the First Circuit holding that Massachusetts’s restrictions on assault weapons and large capacity magazines are constitutional under the Second Amendment. Challenge firearm registration requirements, waiting periods, and related fees. In Justice v. Town of Cicero, the Seventh Circuit Court of Appeals upheld a local law requiring the registration of all firearms. The Supreme Court declined to review that decision, leaving law enforcement with an important tool to keep track of guns in their communities. The Court also denied certiorari in Silvester v. Harris, a decision in which the Ninth Circuit upheld a state law requiring a waiting period before firearms may be transferred to a purchaser to discourage impulsive criminal acts and suicides. Further, the Court denied review in two cases involving firearm licensing and background check fees: Kwong v. Bloomberg, a Second Circuit decision, and Bauer v. Becerra, a Ninth Circuit decision.





In Justice v. Town of Cicero, the Seventh Circuit Court of Appeals upheld a local law requiring the registration of all firearms. The Supreme Court declined to review that decision, leaving law enforcement with an important tool to keep track of guns in their communities. The Court also denied certiorari in Silvester v. Harris, a decision in which the Ninth Circuit upheld a state law requiring a waiting period before firearms may be transferred to a purchaser to discourage impulsive criminal acts and suicides. Further, the Court denied review in two cases involving firearm licensing and background check fees: Kwong v. Bloomberg, a Second Circuit decision, and Bauer v. Becerra, a Ninth Circuit decision. Challenge restrictions of firearms in national parks and other publicly owned places. In Heller, the Court acknowledged the government’s continuing ability to regulate the possession of guns in sensitive places, and unsurprisingly, lower courts have upheld laws and regulations that restrict the use of firearms in public parks. The Supreme Court has declined to review any of these decisions.

These are only some examples of the Supreme Court’s action on gun laws nationwide. The Court has also declined to review numerous other cases upholding federal, state, and local laws and policies restricting dangerous uses of firearms, including laws designed to keep guns out of the hands of children and laws intended to reduce gun trafficking. As a result, the numerous federal and state court decisions upholding these and other gun safety measures have been left undisturbed, keeping lifesaving laws in place in communities across America.

WHAT’S NEXT AT THE COURTS

Despite the current consensus in favor of firearm regulation, gun safety advocates cannot take our eyes off the Supreme Court just yet. The NRA continues to advance its deadly interpretation of the Constitution before the justices of the Supreme Court and in lower courts across the country, demanding that the right to bear arms be treated like a “super-right” that trumps all other constitutional protections. With President Trump’s appointment of NRA-backed justices who support this destructive vision of the Constitution, it is possible the Supreme Court could decide to weigh in on a Second Amendment case in the near future. This is an outcome four justices have already expressed support for, aligning themselves with a view of the Second Amendment that is skeptical of or even hostile to gun violence prevention legislation. This means gun safety supporters must keep fighting to defend our progress—so we’ll be ready when the next case reaches the Supreme Court.