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I want to spend a moment discussing what will happen next, assuming that in late June the Supreme Court holds that the Second Amendment applies to states and local governments.

The next most obvious issue to clarify will be whether the Second Amendment extends to the carrying of firearms. To that end The Calguns Foundation with partners, has filed Sykes v. McGinness ill Sacramento and Yolo Counties. That case was filed shortly after the decision in Nordyke (incorporating the Second Amendment) was announced.

Once Nordyke went en banc, Sykes was put on hold as the Second Amendment no longer applies to California, for now. The argument in Sykes is that since there is a right to bear, or carry, arms and the State of California has chosen licenses granted by sheriffs, then sheriffs must treat the “good cause” requirement as “self defense” and the good moral character requirement as “not prohibited from owning firearms.” Further, Sykes challenges residency requirements, since those who travel in or out of state should not lose their fundamental right to carry arms. Sykes will move forward again as soon as the McDonald decision is issued.


Sykes’ twin is a case entitled Palmer v. District of Columbia.


Amazingly, D.C. allows you to carry a firearm with a permit but has no actual way of granting those permits. In a very parallel argument, Palmer takes the position that the right to bear arms requires either (1) a permit for all, or (2) that the permit requirement be stricken entirely, and those people from out of the jurisdiction should be allowed to carry as well.


Both cases rely heavily on various state Supreme Court decisions in the 19th and 20th century, cited in Heller, that generally hold that carry can be regulated so long as there was an alternative but effective way to carry a loaded firearm in public. As D.C. has the Second Amendment directly applied, this case is ongoing and oral argument in the Federal District Court was held January 22, 2010. A decision is likely in the next 60 to 90 days. Should Sykes or Palmer come to different conclusions, Supreme Court review would become quite likely.


Another case filed shortly after Nordyke, but now on hold is Pena v. Cid, which challenges the constitutionality of California Handgun Roster. The Pena case sets forth four reasons why the roster is unconstitutional. These include that the State can’t limit a fundamental right simply because someone didn’t pay $200 to Sacramento to keep a firearm on a list, and that the State of California can’t actually ban the sale of the firearm that the Supreme Court ruled must be registered by D.C. in Heller. Pena was a twin of a case entitled Hanson v. D.C. as D.C. had adopted California’s roster. However, Hanson was mooted by D.C. as they quickly changed the law to make their Roster so permissive that it has become a bit of a sport amongst firearms lawyers to try to find a handgun that D.C.’s roster will not permit one to purchase.


In addition to those cases already filed, one should expect a few more issues to be explored very shortly after the McDonald decision. For example, bans on semiautomatic rifles, certain limits on acquiring firearms, and firearms laws that also violate the Fourth Amendment will likely be examined. Additionally, there are cases that don’t rely upon incorporation that are already underway. In a very interesting criminal case out of the 7th Circuit Court of Appeals, U.S. v Skoien, that court opined:


He has claimed only that § 922 (g) (9) [the prohibition for domestic violence misdemeanants] as applied to him infringes his right to possess his hunting shotgun for hunting. We are not suggesting that keeping and bearing firearms for hunting falls outside the scope of the Second Amendment; to the contrary, as we have noted, Heller specifically stated that “Americans valued the ancient right for self-defense and hunting.” 128 S. Ct. at 2801 (emphasis added). We make this observation only to clarify that § 922(g) (9) as applied in this case does not strike at the heart of the Second Amendment right as explicated in Heller. Laws that restrict the right to bear arms are subject to meaningful review, but unless they severely burden the core Second Amendment right of armed defense, strict scrutiny is unwarranted.

That leaves us with intermediate scrutiny, which is less demanding than strict scrutiny and we think the most appropriate standard of review given Heller’s reference to “presumptively lawful” gun regulations. This more flexible standard generally requires the government to establish that the challenged law is substantially related to an important governmental interest.


As the 7th Circuit is not exactly a gun friendly court, the implication is that much of the core Second Amendment infringements are going to be subject to strict scrutiny by Federal Courts as are restrictions on speech. Note also that intermediate scrutiny for more peripheral restrictions will likely invalidate many of the more ancillary attempts at gun control as states and localities will need actual evidence for the need for or effectiveness of gun controls. Simple assertions will not be enough.


A positive decision in McDonald is the end of the beginning. Shortly thereafter, the pace of litigation is likely to quicken and the resulting political and legal environment for gun owners is going to be fluid. You can keep up with your expanding liberties by visiting Calguns.net. However, for those that prefer this medium, I’ll keep reporting from the front lines.


About the author: Gene Hoffman is the Chairman of the Calguns Foundation, the co-inventor of the Bullet Button, a life member of the NRA, and a CRPA board member. When he’s not using his C&R FFL, punching holes in paper, or punching holes in unconstitutional laws, he amuses two darling daughters and can sometimes be found shopping for his next boat.


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