Current State of Second Amendment Litigation

Second Amendment litigation continues to take shape as federal courts apply recent U.S. Supreme Court decisions to firearm restrictions and criminal prosecutions. Recent decisions have clarified how judges must evaluate whether gun laws are consistent with the nation’s historical tradition of firearm regulation, and other disputes remain before the courts, meaning the law may continue to change.

If you face state or federal firearm charges in Texas, the experienced Dallas criminal defense attorneys at Broden & Mickelsen, LLP, can examine whether a constitutional challenge may provide a defense in your case. Contact our office today to get started with a free consultation.

How Can Broden & Mickelsen, LLP, Use Second Amendment Litigation in a Firearm Defense?

Second Amendment jurisprudence can play an important role in a firearm defense when the law underlying a charge may conflict with constitutional protections. Broden & Mickelsen, LLP, can evaluate both the facts of your case and the validity of the firearm restriction the government is seeking to enforce against you.

Broden & Mickelsen, LLP, has an extensive track record of favorable outcomes in federal cases, with an acquittal rate six to eight times better than the national average in one recent year. While past results don’t guarantee similar outcomes in the future, you can trust that Broden & Mickelsen, LLP, will bring our aggressive approach to your defense and fight for the most favorable outcome possible.

As one of our past clients wrote of his family’s experience with us:

“We have our life back! Our son was accused of a crime he did not commit. Through the dedication and hard work of Mr. Mickelsen, our son was found Not Guilty. Mr. Mickelsen will forever be in our hearts with tremendous gratitude. If you are accused of something, you will be best represented and served by Broden & Mickelsen, LLP.” – Brad H.

Firearm cases are highly fact-specific, and we craft individualized defense strategies to best serve our clients. Depending on the circumstances, our attorneys can:

• Challenge the constitutionality of the firearm law involved in your case
• Apply recent Second Amendment rulings to the charges against you
• File motions seeking dismissal or exclusion of evidence that was unlawfully obtained
• Preserve constitutional arguments for appeal when appropriate

How Have Recent Supreme Court Decisions Shaped Second Amendment Law?

Recent U.S. Supreme Court gun cases have continued defining how lower courts should apply the Second Amendment.

In United States v. Rahimi, the Supreme Court upheld a federal restriction on firearm possession by certain people subject to domestic violence restraining orders. It also clarified that modern gun laws don’t require an exact historical counterpart. Courts may instead look for regulations reflecting similar historical principles.

In United States v. Hemani, the Supreme Court held that applying 18 U.S.C. § 922(g)(3) to a regular marijuana user under the facts presented violated the Second Amendment right to possess a firearm. Additionally, Wolford v. Lopez struck down Hawaii’s restriction on licensed concealed carry on private property open to the public without express permission.

What Second Amendment Cases Are Currently Before the Supreme Court?

Cases with Second Amendment implications frequently reach the Supreme Court. Of the pending Second Amendment cases, the major one is Viramontes v. Cook County, consolidated with Grant v. Higgins. The central question is whether the Second and Fourteenth Amendments protect an individual’s right to possess AR-15-platform and similar semiautomatic rifles. The outcome could affect how courts evaluate state and local restrictions on commonly owned semiautomatic firearms. It may also provide additional guidance on applying the historical-tradition analysis established in recent cases involving Second Amendment analysis.

How Can a Constitutional Challenge Affect Federal or Texas Firearm Charges?

A constitutional challenge may attack the firearm restriction underlying a criminal charge rather than only disputing the facts. After Rahimi and other recent decisions, courts evaluating certain Second Amendment claims must examine whether the challenged law is consistent with the nation’s historical tradition of firearm regulation. In a federal or Texas firearm case, a successful challenge could potentially lead to dismissal of a charge or otherwise narrow the government’s case. The available arguments depend heavily on the specific statute, facts, and controlling precedent.

Contact a Dallas Gun Charges Lawyer About a Second Amendment Defense

If you’ve been charged with a firearm-related offense under Texas law or federal law, let the team of board-certified criminal defense attorneys at Broden & Mickelsen, LLP, provide the guidance and support you need to fight the charge head-on.

Contact us right away to arrange a free initial consultation with a Dallas gun charges lawyer.

Frequently Asked Questions

Is Garland v. Cargill a Second Amendment decision?

While Garland v. Cargill involved firearms, the Supreme Court didn’t decide the case under the Second Amendment. Instead, it held that the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) exceeded its statutory authority by classifying bump stocks as “machine guns” under 26 U.S.C. § 5845(b).

What is the difference between facial and as-applied Second Amendment challenges?

A facial challenge argues that a firearm law is unconstitutional in all its applications. An as-applied challenge argues that a law may be generally valid but unconstitutional when enforced against a particular defendant under that defendant’s circumstances.

Can a Second Amendment argument be waived if it is not raised in the trial court?

Potentially. In the Fifth Circuit, a party generally must clearly press an argument in the district court to preserve it for appeal. In practical terms, failing to raise the Second Amendment issue at the trial level can make it much harder to obtain relief later on appeal.

Does the Texas Constitution separately protect the right to keep and bear arms?

Article I, Section 23 of the Texas Constitution protects an individual’s right to keep and bear arms for lawful defense, while also authorizing the legislature to regulate the wearing of arms to prevent crime. That means a firearm-related constitutional challenge in Texas may potentially involve protections under both the U.S. Constitution and the Texas Constitution, depending on the law and circumstances at issue.