Gun rights groups' wave of lawsuits could change America's relationship with firearms

Escalating Second Amendment court battles could soon dramatically reorder the nation's relationship with firearms.

Gun rights groups are mounting a wave of federal lawsuits that challenge local, state and federal restrictions on the Second Amendment right to keep and bear arms. And they're winning.

From early 2016 through the close of 2021, six of the organizations were among the plaintiffs in more than 90 federal court cases, either independently or jointly, a USA TODAY review of firearms-related lawsuits shows.

The combined court fights so far have tallied nearly 20 interim or final victories. The cases overturned COVID-19 pandemic-related shutdowns of firearm registration systems, knocked down gun licensing prohibitions for residents of public housing and prospective foster parents, and enabled permanent legal residents to seek firearms licenses.

Representatives of two of the groups pursuing the lawsuits said the court challenges are necessary because restrictions on the Second Amendment are unconstitutional. Each firearms control measure represents a step toward the "goal of taking away guns," said Michael Hammond, the legislative counsel for Gun Owners of America.

"The numbers of authoritarian regulations are increasing, and we're there to fight them," said Dan Dement, communications director for the Firearms Policy Coalition, another group pursuing the lawsuits. "Thankfully, we do have a legal system where we can pursue justice against infringements of our natural rights."

The wave of gun rights cases also dovetails with the strategy in which conservative organizations have helped more like-minded judicial nominees become federal court judges and weigh Second Amendment challenges, said Adam Skaggs, chief counsel and policy director of the Giffords Law Center to Prevent Gun Violence.

"These are troubling times for Americans who are trying to fight gun violence," said Skaggs, who contends some judges take an excessively broad view of Second Amendment protections. "Our entire history of regulating firearms is being challenged."

One of the lawsuits brought the most consequential Second Amendment challenges in more than a decade to the U.S. Supreme Court. That case challenges New York's requirement that those who seek licenses to carry handguns outside their homes for self-defense must demonstrate good cause.

If the nation's highest court finds the requirement unconstitutional in a decision expected this summer, the ruling could apply to similar firearms laws nationwide, allowing more guns to be carried, legally, in the nation's most crowded cities, said Skaggs. The lawsuits filed by the gun rights groups include at least five that are on hold because the high court's decision would likely affect their outcomes.

Other pending cases filed by the groups feature challenges to laws that ban or restrict high-capacity gun magazines, bar firearms deemed assault weapons and set minimum age requirements for gun licenses.

A semi-automatic rifle displayed with a 25 shot magazine, left, and a 10 shot magazine, right, at a gun store in Elk Grove, Calif. San Diego-based U.S. District Judge Roger Benitez declared, on March 29, 2019, unconstitutional the law banning possession of magazines containing more than 10 bullets.
A semi-automatic rifle displayed with a 25 shot magazine, left, and a 10 shot magazine, right, at a gun store in Elk Grove, Calif. San Diego-based U.S. District Judge Roger Benitez declared, on March 29, 2019, unconstitutional the law banning possession of magazines containing more than 10 bullets.

The lawsuits have won support even from some Black Americans, who historically backed firearm restrictions because many victims of gun violence were people of color.

"I am supportive of anyone fighting restrictions on the Second Amendment," said Philip Smith Oboyede, founder and president of the National African American Gun Association. "It's time for us to reevaluate the ethos that Blacks don't need guns and guns are dangerous."

'A broader view of gun rights'

The organizations behind the lawsuits aren't necessarily household names.

Although the National Rifle Association is one of the organizations, the nation's best-known gun rights group was not the most prolific plaintiff. Two other groups, the Second Amendment Foundation and the Firearms Policy Coalition were among the plaintiffs in 65 of the cases, while the NRA had that role in 12, USA TODAY's review found.

The NRA is battling a New York attorney general's lawsuit that seeks to dissolve the nonprofit organization over alleged diversion of millions of dollars to NRA insiders and away from the group's charitable mission. In court filings, the NRA has denied the allegations and called the case a political vendetta. The lawsuit is pending.

Michael Jean, director of the NRA's Office of Litigation Council, said in a written statement that "some groups rushed in with multiple (Second Amendment) cases" when Associate Justice Amy Coney Barrett was confirmed.

In contrast, Jean said the NRA "chose to utilize our resources to pursue a quality portfolio that will benefit as many other gun owners as possible." He noted that the NRA's New York state affiliate is the lead plaintiff in the case now awaiting the Supreme Court's decision.

The other gun rights groups in USA TODAY's review are the California Rifle and Pistol Association and the National Association for Gun Rights. The review did not include friend of the court briefs and state court cases any of the groups filed.

Some of the lawsuits challenged existing legal precedents that limited the scope of the Second Amendment. The court complaints argued that those outcomes had been wrongly decided. Other lawsuits sought to overturn recently approved state or local legislation that restricted gun rights.

Still, others were designed to seek precedent-setting decisions from the Supreme Court, which now has a 6-3 conservative majority cemented by President Donald Trump's 2020 nomination of Barrett.

President Donald Trump watches as Supreme Court Justice Clarence Thomas administers the Constitutional Oath to Amy Coney Barrett at the White House in October 2020. Barrett's confirmation cemented a 6-3 conservative majority that's giving gun rights groups hope for an expansion of Second Amendment protections.
President Donald Trump watches as Supreme Court Justice Clarence Thomas administers the Constitutional Oath to Amy Coney Barrett at the White House in October 2020. Barrett's confirmation cemented a 6-3 conservative majority that's giving gun rights groups hope for an expansion of Second Amendment protections.

Cases in which the Second Amendment Foundation and the Firearms Policy Coalition are among the plaintiffs present an "impressive array" of legal arguments, said Eric Ruben, an assistant professor at Southern Methodist University's Dedman School of Law and co-author of a Second Amendment lawsuit study.

"There may be a sense among gun rights supporters that now is the time to go on the offensive," said Ruben, who cited the high court's expanded conservative makeup as a driving factor. "Now, there are more (judicial) opinions getting written ... that are conveying a broader view of gun rights."

Other recent lawsuits have featured cases that appeal to average gun owners, such as long delays in firearms licensing, said Jacob Charles, executive director of the Center for Firearms Law at Duke University School of Law.

A wide range of gun cases at stake

Some of the groups have shown "a willingness to challenge just about any gun regulation there is," said Skaggs, the chief counsel of the Giffords law center. The lawsuits support that view.

A 2020 case in California federal court alleged that shutdowns of firearms dealers during the coronavirus pandemic violated Second Amendment rights. The complaint argued that rules about reopening were vague and unevenly applied.

The trial-level court rejected those arguments in the case, which included the NRA, the Second Amendment Foundation and the Firearms Policy Coalition as plaintiffs. However, the U.S. Court of Appeals for the Ninth Circuit in late January delivered a victory for the organizations in a memo that said Los Angeles County's rules had "burdened conduct protected by the Second Amendment."

The court complaint in a 2020 Maryland case that seeks to overturn the state's ban on commonly owned firearms deemed to be assault weapons conceded that the lawsuit was contrary to a 2017 precedent-setting decision. No matter. The complaint, which included the Firearms Policy Coalition and the Second Amendment Foundation as plaintiffs, argued the earlier case had been "wrongly decided" and asked the court to overturn the decision.

Otis McDonald, center, lead plaintiff, speaks at a news conference with his legal team including Alan Gura, left, outside the U.S. Supreme Court building after the announcement of a ruling in their case seeking to overturn Chicago's ban on handguns on June 28, 2010, in Washington. The court overturned the ban, a victory for McDonald and gun rights groups such as the National Rifle Association.
Otis McDonald, center, lead plaintiff, speaks at a news conference with his legal team including Alan Gura, left, outside the U.S. Supreme Court building after the announcement of a ruling in their case seeking to overturn Chicago's ban on handguns on June 28, 2010, in Washington. The court overturned the ban, a victory for McDonald and gun rights groups such as the National Rifle Association.

Citing the precedent, the trial-level court dismissed the case. A three-member federal appeals court panel composed of judges nominated by Presidents Bill Clinton, Barack Obama and Trump affirmed that ruling in a brief, unsigned opinion.

The plaintiffs filed a petition that asks the Supreme Court to review the case. The high court, which typically accepts a small fraction of such requests, has not yet decided whether to consider the case.

A 2020 case in a western Louisiana federal court challenged laws enforced by the Bureau of Alcohol, Tobacco, Firearms and Explosives that bar firearms sales of handguns to anyone under age 21.

The complaint acknowledges that a previous, similar challenge was dismissed in a district court, a decision that was upheld by a federal appeals court.

Nonetheless, the complaint said the case, which includes the Firearms Policy Coalition and the Second Amendment Foundation as plaintiffs, is a "good faith" effort to change the law in accord with a 2008 landmark Supreme Court decision. That ruling, known as the Heller decision, said the Second Amendment protects individual rights to keep firearms at home for self-defense and other lawful purposes.

The case is proceeding, amid cross-motions by the opposing parties.

Flowers, candles and other items surround the famous Las Vegas sign at a makeshift memorial for victims of a mass shooting in October 2017.   Stephen Paddock killed 58 and injured more than 800 using then-legal bump stocks, which enable faster firing. Gun rights groups are hoping a friendlier legal landscape will turn back a decision that classified rifles with bump stocks as forbidden machine guns.
Flowers, candles and other items surround the famous Las Vegas sign at a makeshift memorial for victims of a mass shooting in October 2017. Stephen Paddock killed 58 and injured more than 800 using then-legal bump stocks, which enable faster firing. Gun rights groups are hoping a friendlier legal landscape will turn back a decision that classified rifles with bump stocks as forbidden machine guns.

In a 2018 case, Gun Owners of America tried to overturn the Trump-era decision by the ATF that classified rifles with bump stocks, which enable faster firing, as forbidden machine guns. The change followed the 2017 massacre in which gunman Stephen Paddock killed 58 and injured more than 800 at a Las Vegas outdoor concert using then-legal bump stocks.

Hammond, the Gun Owners of America's legislative counsel, said the group filed the lawsuit in Michigan federal court because cases decided there would go to the Sixth Circuit U.S. Court of Appeals, known for conservative judges. However, the full panel of appeals court judges deadlocked, 8-8, on the lawsuit, an outcome that let the ATF rule change stand.

The plaintiffs plan to seek Supreme Court review.

One of the most recent cases is a lawsuit filed by the National Association for Gun Rights over the California city of San Jose's decision to require gun owners to obtain liability insurance. Scheduled to take effect in July, the ordinance would also require payments to a nonprofit that would provide harm-reduction services.

Hannah Hill, the group's research and policy director, said such requirements "strike right at the heart of the Second Amendment."

The successful outcomes in some cases in USA TODAY's review mark a shift from the findings of a study that examined Second Amendment cases in federal and state courts during the eight years that followed the Heller decision.

Many legal experts expected the decision would prompt a wave of successful Second Amendment challenges. However, no more than 13% of Second Amendment challenges succeeded in federal district and appeals courts during the eight-year period, said the study, published in the Duke Law Journal and co-authored by Ruben, the Southern Methodist University law professor, and Joseph Blocher, a Duke Law professor.

The Heller decision decided the right to bear arms for self-defense, apart from service in a militia. Some gun rights groups and legal analysts have argued that federal courts have ignored the ruling. So has Supreme Court Associate Justice Clarence Thomas, who in a 2015 dissent wrote that lower courts had "failed to protect" the Heller decision's core protection for self-defense.

However, the study co-authored by Ruben argued that lower courts have used the ruling to uphold strong Second Amendment challenges and deny those with weaker legal arguments. In all, 60% of the decisions reviewed by the study quoted the portion of the decision written by Supreme Court Associate Justice Antonin Scalia that said the Second Amendment right "is not unlimited."

Craftsman Veetek Witkowski holding a newly assembled AR-15 rifle at the Stag Arms company in New Britain, Conn., in 2013 A ruling released on April 6, 2018, by a federal judge in Boston, dismissed a lawsuit challenging Massachusetts' ban on assault weapons and large-capacity magazines, stating that assault weapons are beyond the scope of the Second Amendment right to "bear arms."
Craftsman Veetek Witkowski holding a newly assembled AR-15 rifle at the Stag Arms company in New Britain, Conn., in 2013 A ruling released on April 6, 2018, by a federal judge in Boston, dismissed a lawsuit challenging Massachusetts' ban on assault weapons and large-capacity magazines, stating that assault weapons are beyond the scope of the Second Amendment right to "bear arms."

One gun rights legal group, the Second Amendment Law Center, hopes the case now awaiting a Supreme Court decision – the challenge to New York’s requirement that people seeking to carry concealed handguns outside their home show good cause – will include a framework that spells out how pending and future such cases must be handled by courts.

If that happens, "it will be a lot harder for courts to let their biases influence their decisions by applying the wrong standard of review," said C.D. Michel, who is the group's president and senior legal counsel, as well as president of the California Rifle and Pistol Association.

However, a Supreme Court ruling that requires courts to hold stricter reviews of Second Amendment challenges could rule out evidence that a given restriction provides benefits, such as fewer incidents of shootings, said Josh Horwitz, executive director of The Educational Fund to Stop Gun Violence. That means federal courts would be more likely to rule that firearms restrictions violate the Second Amendment.

Courts should be permitted to "consider evidence that the restrictions work, from a public health perspective," said Horwitz.

This article originally appeared on USA TODAY: Gun rights groups' lawsuits seek stronger Second Amendment protection