Idaho Federal District Court Rules that U.S. Army Corps of Engineers’ Regulation Restricting Possession of Firearms Violates Second Amendment

An Idaho federal district court recently issued a preliminary injunction preventing the U.S. Army Corps of Engineers (“the Corps”) from enforcing a 40-year-old regulation restricting the possession of loaded firearms and ammunition on Corps-administered property.

Facts

The plaintiffs were residents of Western Idaho who traveled to Corps-administered public lands for recreation. They argued that 36 C.F.R. § 327.13, which prohibited the possession of loaded firearms and ammunition (absent several exceptions) on Corps property, violated the Second Amendment.  That provision provides as follows:

(a) The possession of loaded firearms, ammunition, loaded projectile firing devices, bows and arrows, crossbows, or other weapons is prohibited unless:
    (1) In the possession of a Federal, state or local law enforcement officer;
    (2) Being used for hunting or fishing as permitted under § 327.8, with devices being unloaded when transported to, from or between hunting andfishing sites;
    (3) Being used at authorized shooting ranges; or
    (4) Written permission has been received from the District Commander.
(b) Possession of explosives or explosive devices of any kind, including fireworks or other pyrotechnics, is prohibited unless written permission has been received from the District Commander.

Specifically, the plaintiffs alleged that the regulation violated the Second Amendment by banning the possession of firearms in a tent and by banning the carrying of firearms on Corps’ recreation sites. The Corps filed a motion to dismiss, arguing that the plaintiffs had no Second Amendment rights as a matter of law and that, even if they did, the regulation at issue did not violate those rights.

District Court’s Analysis

The court denied the Corps’ motion and issued a preliminary injunction enjoining the Corps from enforcing the regulation as to “law-abiding individuals possessing firearms for the purposes of self-defense.”
In reaching this decision, the court employed a two-step analysis set forth in U.S. v. Chovan, 735 F.3d 1127 (9th Cir. 2013): (1) determining whether the challenged law burdens conduct protected by the Second Amendment; and (2) applying the appropriate level of scrutiny. The court unequivocally ruled that the regulation did impose a burden on the plaintiffs’ Second Amendment rights. The court explained that the United States Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008), held that the Second Amendment protects the right to carry a firearm for self-defense purposes. Because the challenged regulation banned carrying a loaded firearm for the purpose of self-defense, the court reasoned that the regulation burdened the plaintiffs’ Second Amendment rights.

The court then sought to determine the appropriate level of scrutiny. The court stated that a regulation that threatened a core Second Amendment right was subject to strict scrutiny, while a less severe regulation that did not encroach on a core Second Amendment right was subject to intermediate scrutiny. The appropriate level, the court stated, was to be determined by (1) how close the regulation came to the core of the Second Amendment and (2) how severe the burden was on that right.

The court explained that the United States Supreme Court had found in Heller that the right of a law-abiding citizen to possess a handgun in his home for self-defense was a core right. In so holding, the Supreme Court had reasoned that the home is where the need for defense of self, family, and property is most acute.

“The same analysis applies to a tent,” the court stated. “While often more temporary, a tent is more importantly a place—just like a home—where a person withdraws from public view, and seeks privacy and security for himself and perhaps also for his family and/or his property.” Because the challenged regulation would ban firearms and ammunition in a tent on the Corps’ sites, the court ruled that the ban imposed a substantial burden on a core Second Amendment right and was subject to strict scrutiny.

The court next evaluated whether the ban on carrying firearms for self-defense outside of a tent burdened a core right. The court said that Heller made clear that the right of self-defense was not unlimited. Prohibitions on the right to carry firearms in sensitive places like schools and government buildings pass constitutional muster. “As we move outside of the home, firearm rights have always been more limited because public safety interests often outweigh individual interests in self-defense.”

The court examined two post-Heller cases, one that upheld a regulation banning loaded firearms in a National Park because it included an accommodation for self-defense (United States v. Masciandaro, 638 F.3d 458 (4th Cir. 2011)). and one that struck down a regulation flatly banning the carrying of even unloaded firearms if ammunition was accessible (Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012)). The court reasoned that the case at hand more closely resembled the latter case because it contained a flat ban on carrying a firearm for self-defense purposes. The court stated that while the ban might impose a burden on the core right of the Second Amendment severe enough to call for strict scrutiny, it was unnecessary to reach that issue. The regulation, the court found, violated the Second Amendment, even if intermediate scrutiny was applied. Because the regulation entirely banned firearms from being carried for self-defense, it was simply too broad and needed to be “brought up to date” to accord with Heller.

The court found that the plaintiffs had shown a very strong likelihood of success on the merits, that irreparable harm was likely, that the balance of equities tipped in their favor, and that an injunction was in the public interest. As such, the court entered a preliminary injunction enjoining the Corps from enforcing 36 C.F.R. § 327.13 “as to law abiding individuals possessing functional firearms for the purpose of self-defense.” The court clarified that the decision was preliminary in nature and that the Corps remained entitled to an evidentiary hearing or trial to establish a factual record before the court would reach a final resolution.

Conclusion

Although this case is a preliminary decision, it is likely—based upon the court’s analysis—that a final injunction will issue. At that point, the Corps could appeal to the United States Court of Appeals for the Ninth Circuit. This preliminary injunction, and any final injunction that may issue, will only impact the District of Idaho. If the Ninth Circuit were to affirm, the decision would extend to Alaska, Arizona, California, Hawaii, Montana, Nevada, Oregon, and Washington.

In spite of its limitations, this decision is a victory for proponents of a right to carry firearms for self-defense. We will post updates to this case as they unfold.