Second Amendment Litigation

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.

Center for Biological Diversity, et, al. v. US Forest Service, et, al. (USDC AZ)

In September 2012, Plaintiffs sued the U.S. Forest Service (Forest Service) under the Resource Conservation and Recovery Act for failing to ban lead ammunition in the Kaibab National Forest.  NRA and Safari Club International (SCI) moved to participate as an intervenor-defendant in support of Forest Service.  On July 2, 2013, the trial court dismissed the Plaintiffs’ complaint finding that they lacked Article III Standing and dismissed NRA/SCI’s motion to intervene as moot.  The Plaintiffs appealed the decision to the 9th Circuit Court of Appeals where NRA, SCI, and the National Shooting Sports Foundation filed an amicus brief in support of the U.S. Forest Services

Heller, et al. vs. District of Columbia, et al. (Heller II) (USDC DC)

This long running case is a challenge to many of the regulatory requirements for long guns and handguns in the District of Columbia.  The case is on remand from the U.S. Court of Appeals for the D.C. Circuit where a partial adverse ruling was entered.  Following the conclusion of the government shutdown which delayed this case, the defendants and plaintiffs both filed for summary judgment.   Motions in opposition have been filed by both sides and can be found here and here, the last of which being the plaintiffs’ response to the government’s opposition to their motion for summary judgment filed on February 3, 2014. 

Tardy v. O’Malley (USDC ND MD)

With assistance from the NRA several gun rights activists and organizations, including the Associated Gun Clubs of Baltimore, Maryland Shall Issue, Maryland State Rifle and Pistol Association, National Shooting Sports Foundation and Maryland Licensed Firearms Dealers Association filed a complaint for declaratory judgment and injunctive relief on September 26, 2013 in the United States District Court in the Northern District of Maryland.  The action challenges that part of Maryland’s newly adopted Firearm Safety Act of 2013 which broadly restricts the ability of law abiding, responsible citizens of Maryland to defend themselves, their families and their homes by prohibiting outright certain commonly used rifles, shotguns and standard capacity magazines.  A copy of the complaint can be found here.  On September 27th, a motion for a temporary restraining order was filed, a copy of which can be found here.

Doe v. O’Malley (USDC ND MD)

In a companion case to Tardy, several individuals and organizations including Wink’s Sporting Goods, Atlantic Guns, the Associated Gun Clubs of Baltimore, Maryland Shall Issue, the Maryland State Rifle and Pistol Association, and the Maryland Licensed Firearms Dealers Association with assistance from the National Rifle Association filed a complaint for declaratory judgment and injunctive relief as well as motion for a temporary restraining order and preliminary injunction against Governor Martin O’Malley and the Maryland State Police on September 27, 2013.  The complaint, a copy of which can be found here, challenges the lack of adequate resources to process the applications of tens of thousands of Maryland citizens seeking to exercise their right to keep and bear arms under the Handgun Qualification License scheme of The Firearms Safety Act of 2013.  A copy of the motion for the temporary restraining order and preliminary injunction and associated memorandum in support can be found here and here

 National Rifle Association of America, Inc. v. McCraw (SCOTUS)

Despite a generally friendly posture towards gun ownership and the Second Amendment, the state of Texas still does not allow adults between the ages of 18 and 20 to obtain a concealed carry permit effectively treating them as second class citizens in regards to the Second Amendment.  In a companion case to NRA v. BATFE (listed below), the NRA filed a petition for writ of certiorari with the Supreme Court of the United States on September 24, 2013 challenging a ruling from the United States Court of Appeals for the Fifth Circuit which found that responsible, law abiding 18-20 year old adults do not have the right to bear handguns in public for self defense.  A copy of the petition can be found here.

National Rifle Association of America v. Bureau of Alcohol, Tobacco, Firearms and Explosives, et. al, (SCOTUS)

On July 29, 2013 the NRA filed a petition for writ of certiorari with the Supreme Court of the United States seeking review of the United States Court of Appeals for the Fifth Circuit’s opinion in the case of NRA v. BATFE, et. al.

The case challenges the federal laws making it illegal for a licensed firearms dealer to sell a handgun or handgun ammunition to anyone under the age of 21.  It was initially brought before the United States District Court for the Northern District of Texas.  On September 29th, 2011 that court granted summary judgment to the BATFE and the issue was appealed to the Fifth Circuit Court of Appeals.  On October 25th, 2012 the Court of Appeals affirmed the District Court’s decision.  The NRA timely filed a petition for rehearing en banc, and following an en banc poll finding 7 judges in favor of rehearing and 8 against with a strong dissenting opinion by Judge Edith H. Jones, on April 30, 2013 the petition was denied.

A copy of the NRA’s petition for writ of certiorari with the Supreme Court of the United States can be found here.

State of Mississippi v. Robert Schuler Smith, (Mississippi Supreme Court)

On July 29th, 2013 the NRA, Governor Phil Bryant, and a coalition of 80 pro-Second Amendment state legislators each submitted separate "friend of the court" briefs in support of the Combined Petition for Interlocutory Appeal and Motion to Vacate Permanent Injunction filed by the state Attorney General's Office with the Supreme Court of Mississippi on July 22nd.  That appeal and motion asked the justices to overturn the previous ruling of the lower court and allow NRA-backed House Bill 2 to take effect.

A copy of the NRA’s brief, challenging the notion that House Bill 2 contains unconstitutionally vague language, can be found here.  A copy of the state lawmakers' amicus curiae brief, laying out their response to this misguided challenge to their legislative and constitutional authority to enact pro-self-defense laws such as HB 2, can be found here.  To view a copy of the brief filed by Governor Phil Bryant seeking the permanent injunction be vacated, click here.

On August 29th, the Supreme Court of Mississippi granted the Petition for Interlocutory Appeal and without further briefing found that the Circuit Judge erred as a matter of law when he found House Bill 2 to be vague and unconstitutional, vacating the Circuit Court’s order granting injunctive relief.

Change of Fortune in Delaware Public Housing Litigation 

Supporters of the right to keep and bear arms won an important victory in the U.S. Court of Appeals for the Third Circuit with NRA’s support.  Doe v. Wilmington Housing Authority, No. 12-3433.  On July 18, 2013, the court ruled the Delaware Supreme Court, not the federal courts, should determine whether the Delaware Constitution provides greater protection for the right to keep and bear arms than does the Second Amendment.

The Wilmington Housing Authority, which operates several public housing complexes, had originally banned residents from possessing any kind of firearm.  NRA joined forces with several public housing residents to challenge the ban based in part on their receipt of federal funding.  The Housing Authority rescinded its ban but replaced it with a host of burdensome and overreaching rules barring carrying a legally owned firearm in areas such as hallways, parking lots and sidewalks, even with a carry permit, unless it was actually being “used” at the moment to defend against attack. The public housing agency also imposed burdensome paperwork obligations on residents relating to licenses and permits that would not apply in private residences.

The case was brought by residents of the housing authority to have those restrictions overturned.  After an unfavorable decision by the federal District Court on Second Amendment grounds, the residents appealed to the federal Third Circuit, relying on Article I, § 20 of the Delaware Constitution.  Section 20 was passed in 1987, and provides state constitutional protection of a person’s “right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use.”

At the residents’ request, the Third Circuit recognized that the Delaware Supreme Court, not the federal courts, should decide whether these restrictions could withstand scrutiny under the Delaware Constitution.  Quoting from a prior case, the Third Circuit observed that “Delaware judges cannot faithfully discharge the responsibilities of their office by simply holding that the Declaration of Rights in Article I of the Delaware Constitution is necessarily in ‘lock step’ with the United States Supreme Court’s construction of the federal Bill of Rights.”

The case is thus a substantial step forward in recognizing that states may provide superior protection to the right to keep and bear arms under state Constitutions, and that state courts, not federal courts, will be the ultimate arbiters of those rights for their own citizens.

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, (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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