Since the U.S. Supreme Court’s 2008 decision in District of Columbia v. Heller, holding that the Second Amendment guarantees an individual right to keep and bear arms, hundreds of Second Amendment cases have been litigated in federal and state courts. The pace of litigation has only increased since the Court’s 2010 decision in McDonald v. City of Chicago, holding that the right to keep and bear arms is fundamental and protects all Americans.
Not all of those cases are ours, of course. Many have been brought by other organizations or individuals, or raised by defendants in criminal cases. As with any legal issue that comes up in a large and diverse variety of situations, the arguments put forward range from convincing to frivolous. NRA-ILA’s goal in every case is to strategically advance the rights of gun owners, while not creating bad precedent. To that end, we routinely consider requests from attorneys in the field, as well as seek opportunities to advance key issues with the assistance of some of America’s top appellate lawyers. (Please click here for more information on NRA-ILA Supported Litigation.)
Depending on the situation, our involvement can range from being a named plaintiff in a suit, to funding and supporting a suit, to intervening and becoming a party, to participating as an amicus, or in some instances to being designated by one of the parties in a suit to lead the oral argument.
The list below contains a select sampling of some of NRA-ILA’s current litigation. We cannot list every case NRA is involved in at the moment—nor can we list every case NRA-ILA would like to consider. At any given time, NRA-ILA is involved in dozens of cases, amounting to hundreds of thousands of dollars in legal bills every single month. That’s in addition to cases supported separately by the NRA Civil Rights Defense Fund. In many cases the involvement of NRA-ILA can have a negative impact on proceedings and/or the party we are supporting has asked that we not publicize the proceedings. Accordingly, the list below only contains information regarding cases in which NRA-ILA is a named party, consent has been granted by the supported party, or cases in which public knowledge of our involvement will not adversely affect the proceedings.
Only the generosity and commitment of Second Amendment supporters—including NRA members and contributors, lawyers who volunteer their services, and plaintiffs who put their names and reputations on the line—make our efforts possible. For that, all of us at NRA-ILA are deeply grateful. To make a donation to NRA-ILA, please click here.
Jackson et al. v. City and County of San Francisco (USDC ND CA)
Filed May 2009, this case challenges provisions of San Francisco's onerous and complex gun laws, primarily its locked storage provision that echoes the DC provision stricken in Heller. San Francisco filed a motion to dismiss in July 2009. An amended complaint was filed in August 2009. The case was stayed by agreement until the Supreme Court decided McDonald. Following reactivation of the case after McDonald the city moved to dismiss the complaint. After extensive briefing in September 2011 the court denied the city’s motion and in October the city finally filed its first answer to the complaint as amended back in 2009. The case continues forward while the city tries to amend and change its ordinances to frustrate the suit, thus far without success.
Maikhio v. California (Supreme Court of the United States)
This case is on petition to the United States Supreme Court. It concerns a ruling by the Supreme Court of California which held that fish & game officers, unlike any other branch of law enforcement, need not pay heed to the Fourth Amendment. The case proper concerns the detainer, search and seizure of a single spiny lobster (along with the defendant’s truck and a host of other possessions) under circumstances unsupportable in any other law enforcement context. This is an issue that is important to not just many sportsman in and outside California, but also a potential benchmark case on civil rights and police powers.
NRA filed an amicus brief in support of review arguing that there is no rational basis to allow fish & game officers extra constitutional powers. The brief was filed November 29, 2011. The case was supposed to “go to conference” (be heard and informally voted on for a full hearing) January 6, however the Court instead directed California to file a reply brief. On March 5 the Supreme Court denied certiorari.
Millender v. Los Angeles, California (Supreme Court of the United States)
In this case members of the Los Angeles Police Department intentionally secured a search warrant but not for the suspect’s house. Instead, they requested the warrant for someone else’s home without reason to believe the specific gun or suspect sought were present. 73 year old Augusta Millender had been the suspect’s former foster mother 15 years earlier. Police failed to tell the magistrate that Mrs. Millender resided at the house, not the suspect. Police raided her house at night, trashed her home and seized Mrs. Millender’s shotgun. Nothing illegal was found. She filed a civil rights suit for the illegal search and seizure. The trial court ruled the officers should be tried for damages.
Following an initial panel ruling the 9th Circuit agreed to rehear the case en banc. An amicus curiae brief was filed by the NRA and the California Rifle and Pistol Association. The en banc panel found for Mrs. Millender employing parts of NRA’s brief in its opinion. The LAPD filed for certiorari to the US Supreme Court which was granted June, 2011. NRA filed an amicus with The Supreme Court of the United States on October 24. The Court heard argument in December.
Peruta, et al. vs. San Diego et, al (USCA Ninth Circuit)
This suit challenges the subjective authority given to local law enforcement to grant or deny a concealed carry permit. In November 2010 the court heard argument on the plaintiffs’ motion for partial summary judgment. In December 2010 the Court denied plaintiffs’ motion but in doing so acknowledged a Second Amendment right to self-defense with a handgun outside the home. The trial court ruled however that California law is constitutionally sufficient as it allows the unloaded open carrying of handguns. An appeal was filed with the Ninth Circuit..
Appellate briefing occurred through to early Fall 2011. A substantial number of amici were filed on both sides, including briefs by the NRA and police training organizations all siding with the plaintiffs. During November counsel for both sides filed several updates with the court on various cases and matters of potential import to the issues here. The case and all Second Amendment litigation in the Ninth Circuit was recently stayed by order of the court pending hearing and resolution of a much older case involving guns shows. The plaintiffs’ counsel filed a motion to lift the stay as to the Peruta case on January 3rd noting significant differences in the issues between the cases.
Jennings, et, al. v. BATFE, et. al, (USCA Fifth Circuit)
The age of majority for all parts of the Bill of rights other than the Second Amendment has been fixed at eighteen for decades. This case and its companion (below) were filed on September 2011 challenging the federal ban on retail sales of handguns to persons between the ages of eighteen and twenty who would otherwise be eligible to purchase and can in fact possess handguns acquired by other legal means. NRA is a plaintiff and is joined by several individual plaintiffs, including lead plaintiff Rebekah Jennings, an accomplished marksman. The case was filed before federal Judge Sam Cummings. On September 29, 2011 Judge Cummings ruled summarily for the government. NRA is appealing this ruling.
Jennings et, al. v. McCraw (TX), et. al (USDC ND TX Lubbock Div)
This companion case to the item above challenges Texas’ prohibition on issuing concealed carry permits to persons between the ages of eighteen and twenty. The case presents the key question of whether the Second Amendment confers a right to carriage. The case was heard in Lubbock, Texas before Judge Sam Cummings after the adverse ruling in the companion case (Above). The case captions may appear confusing because Ms. Jennings was substituted in for Mr. D’Cruz after he moved out of the state. On January 19, 2012 Judge Cummings ruled summarily for the government. NRA is appealing this ruling.
Shepard, et, al. vs. Madigan, et, al. (USDC SD IL Benton Div.)
Immediately following the narrow defeat of a bill to give shall issue concealed carry to the citizens of Illinois, the Office of Legislative Counsel took action. May 2011 suit was filed on behalf of Illinois resident Mary Shepard, the Illinois State Rifle Association and others challenging the constitutionality of Illinois’ complete ban on carrying a gun for self defense in public. Following the game changing Ezell decision from the Seventh Circuit, counsel moved to file a motion for a preliminary injunction on July 8. On July 22 the State moved to dismiss the case in its entirety. On November 16th the court issued an order formally accepting NRA’s amicus brief in support of the plaintiffs. On March 30th, in a decision that conflicts with a growing body of case law elsewhere in the country, the court ruled that the Second Amendment does not protect a right to carry firearms for self-protection outside the home. A notice of appeal has been filed.
Osterweil v Bartlett, et.al (USCA Second Circuit)
Alfred Osterweil, a New York resident for over two decades, retired to Louisiana but kept a summer home in New York. He applied in 2008 for a license to keep a pistol on his premises, but was rejected because he was no longer a "resident" under New York's very narrow definition of "resident" for the purpose of possessing a handgun. Representing himself, he filed suit in the U.S District Court for the Northern District of New York in 2009. In May 2011 the trial court ruled against him, based on a pre-McDonald case that involved a nonresident seeking a permit to carry, rather than to possess a handgun in the home.
Facing an appeal in the case, Mr. Osterweil reached out to attorney Dan Schmutter who in turn contacted us. NRA-ILA assembled a team of counsel including both Mr. Schmutter and Paul Clement to argue the key question: whether New York can constitutionally deny a law-abiding citizen, who owns property and pays taxes, the ability to possess a gun in his own home in the state. On January 26, 2012 counsel for Mr. Osterweil filed their initial brief.
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