NRA-ILA Legal Update -- August 2011

Posted on August 20, 2011

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Introducing the NRA-ILA Legal Update!

To give NRA members and gun owners the latest information on Second Amendment cases filed or supported by the NRA Institute for Legislative Action (www.nraila.org), NRA-ILA is pleased to announce a new online newsletter, the NRA-ILA Legal Update.

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 we consider 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.  (See “NRA-ILA Referrals and NRA-ILA Supported Litigation” at the end of this newsletter.)

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.

In addition to news and updates on our current cases, future issues of the NRA-ILA Legal Update will include short, plain-English articles explaining some of the key legal concepts that affect legislation and litigation on gun issues.  Unfortunately, we cannot list each case in which we are involved at the moment, nor can we list each case we’re considering.  At any given time, NRA-ILA is involved in more than dozens of cases, amounting to millions of dollars in legal bills every year.  The generosity and commitment of Second Amendment supporters make our efforts possible.  For that, all of us at NRA-ILA are deeply grateful.

 

Current Litigation

Protecting the Second Amendment Rights of Every Adult
Although the Heller decision made clear that “the Second Amendment right is exercised individually and belongs to all Americans,” the federal Gun Control Act continues to impede the exercise of that right by many American adults solely because of their age.  Although handgun possession in the home is clearly protected by the Second Amendment, an adult who is 18, 19 or 20 years old cannot currently buy a handgun from a federally licensed dealer.

Challenging that law is a case in the U.S. District Court for the Northern District of Texas, Jennings v. Bureau of Alcohol, Tobacco, Firearms and Explosives.  Rebekah Jennings is an accomplished competitive shooter and is joined as a plaintiff by other young adults and the NRA, on behalf of our Texas members in the same age group.  This case is before U.S. District Judge Sam Cummings -- author of the 1999 trial court opinion in United States v. Emerson (upheld on appeal in 2001), holding that the Second Amendment guarantees an individual right to keep and bear arms.

Also before Judge Cummings is a related case challenging restrictions on the same young adults’ ability to carry firearms outside the home for personal protection.  In Jennings v. McCraw, Rebekah Jennings, other plaintiffs and the NRA are challenging the state of Texas’ law that denies concealed handgun licenses to most adults under age 21.  In addition to the age limit issue, this case also presents a great opportunity for the courts to rule that the Second Amendment protects the ability to carry firearms outside the home.  Trial in this case is scheduled for November.

Illinois – Statewide
Capping a quarter-century of legislative victories on the right to carry firearms outside the home, Wisconsin enacted one of the nation’s strongest “shall issue” concealed carry permit laws in July.  This left Illinois as the only state with a total ban on carrying firearms for personal protection away from one’s home or place of business. To change that, NRA-ILA is continuing to promote Right-to-Carry legislation at the state capitol.  But we’re also challenging in court.

The case is Shepard v. Madigan, currently pending in the U. S. District Court for the Southern District of Illinois. The lead plaintiff is church treasurer Mary Shepard, who, along with an elderly co-worker, was severely beaten at her workplace by an attacker with a criminal record. Ironically, Mrs. Shepard has carry permits issued by two other states, but was left unarmed and defenseless by Illinois’ law. Her challenge -- in which the Illinois State Rifle Association, NRA’s state affiliate, also joins as a plaintiff -- contends that Illinois’ carry ban cannot stand in light of the Heller and McDonald decisions. 

After the case was filed, the U.S. Court of Appeals for the Seventh Circuit decided Ezell v. City of Chicago (see discussion on Chicago litigation, below).  Among the important points in that decision was the court’s ruling that “broadly prohibitory laws restricting the core Second Amendment right … are categorically unconstitutional.”  Based on that ruling, Mrs. Shepard’s attorneys have now asked for an immediate preliminary injunction against enforcement of Illinois’ carry ban.

Illinois - Chicago
Politicians have taken the same approach in Chicago, where just four days after the McDonald decision, then-Mayor Richard Daley got a unanimous City Council to vote for a new law that (among other things) prohibits possession of a gun anywhere outside the living space of a home (even on a porch or in a garage).  Chicago also banned all gun stores and gun transfers (except by inheritance) in the city.  The city also required mandatory training in order to get a permit, including at least one hour of live fire -- while also banning shooting ranges within the city limits.

Four days after the council vote, NRA-ILA supported a group of Chicago residents challenging the worst provisions of the new law.  Also joining the case of Benson v. City of Chicago is the Illinois Association of Firearms Retailers -- a state affiliate of the National Shooting Sports Foundation -- whose members would open gun stores and shooting ranges in Chicago if not for the new law.

Fortunately for Chicago residents, the shooting range ban was struck down on July 6 in Ezell  -- a case limited only to the shooting range issue.  In its opinion, the U.S. Court of Appeals for the Seventh Circuit ruled that “The right to possess firearms for protection implies a corresponding right to acquire and maintain proficiency in their use,” and noted that “It's hard to imagine anyone suggesting that Chicago may prohibit the exercise of a free speech or religious-liberty right within its borders on the rationale that those rights may be freely enjoyed in the suburbs. That sort of argument should be no less unimaginable in the Second Amendment context.”

While Ezell was not NRA-ILA’s case, our more comprehensive challenge in Benson continues. Chicago’s range prohibition was only one way in which the city is continuing to thumb its nose at the U.S. Supreme Court and the rights of law-abiding gun owners.  As noted earlier, Chicago also bans gun possession not only outside the home, but in parts of the home such as garages, porches and front steps; bans nearly all firearm transfers and on the operation of gun stores; and restricts each Chicago license holder to keep only one “assembled and operable” firearm within the home.  This case is in discovery through October, in which both sides have the opportunity to demand documents and take statements from opponents.

New York - Statewide
The state of New York requires a premises permit in order to keep a handgun in the home for self-defense.  Thumbing its nose at the U.S. Supreme Court’s Heller and McDonald decisions, however, New York refuses to grant this permit to anyone who owns property in the state but does not reside there full-time.  In other words, if you own a house in New York but live there less than a majority of the year, the state says that the Second Amendment doesn’t apply to you.  This is a clear violation of equal protection of the laws and the Court’s decisions in Heller and McDonald.

To fix this gross injustice, NRA-ILA is supporting the case of Osterweil v. Bartlett.  Alfred Osterweil, a retiree who moved to Louisiana but kept a summer home in New York, applied in 2008 for a license to keep a pistol on his premises, but was rejected because he was no longer a resident.  Representing himself, he filed suit in the U.S District Court for the Northern District of New York in 2009.  On May 20, 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 a lawyer who contacted us.  NRA-ILA has assembled a team of top-notch counsel 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.  

California - Statewide
In 2009, anti-gun activists in California won passage of a law that imposed draconian new controls on transfers of “handgun ammunition,” including a complete ban on online and mail order sales.  The new law applied to all “ammunition principally for use in pistols, revolvers, and other firearms capable of being concealed upon the person”.  As all shooters know, of course, nearly any caliber of ammunition can be used in both rifles and handguns. 

In the NRA-ILA supported case Parker v. California, a group of plaintiffs -- including law enforcement officials, ammunition dealers and the California Rifle and Pistol Association Foundation –- successfully challenged this law, arguing that no ordinary person can easily determine whether a particular kind of ammunition is “principally for use” in handguns.  The Fresno County Superior Court agreed and issued an injunction blocking enforcement of the law.  That decision is now on appeal.

California – San Diego
California, like the handful of “may issue” states, allows sheriffs and police chiefs to arbitrarily reject carry permit applications from people who are fully eligible for permits under state law.

In the NRA-ILA supported case of Peruta v. County of San Diego, several individual plaintiffs (along with the California Rifle and Pistol Association Foundation) are challenging San Diego County Sheriff William Gore’s refusal to issue carry permits to qualified applicants. Briefs are currently being filed before the U.S. Court of Appeals for the Ninth Circuit.  NRA-ILA is represented as an amicus curiae (“friend of the court”) by former U.S. Solicitor General Paul Clement, who is making the strong argument that restrictions on our Right to Keep and Bear Arms must be reviewed under the highest possible level of judicial scrutiny.

The case is on appeal from a ruling by the U.S. District Court for the Southern District of California.  That court came up with the notion that discriminatory permitting isn’t a burden on the Second Amendment because California law allows a person to carry a loaded firearm when in “immediate, grave danger,” and also allows a person to carry an unloaded firearm openly.  Therefore, claimed the court, “Should the need for self-defense arise, nothing in [state law] restricts the open carry of unloaded firearms and ammunition ready for instant loading.” 

One can only hope that the Ninth Circuit will take a more practical view of what is feasible in a self-defense emergency.  (To help with that, an amicus brief from the International Law Enforcement Educators and Trainers Association, authored by longtime Second Amendment scholar and NRA Publications contributor David Kopel, includes links to online video demonstrations showing how hard it is to load a gun while being physically attacked).

California – San Francisco
The right to own and carry guns would be meaningless if we were deprived of the right to buy, use and possess ammunition – let alone actually load our guns.  That’s why anti-gun activists have attacked ammunition for years with prohibitive taxes, registration schemes and other ideas to make ammunition unavailable to ordinary Americans.  Today, your NRA-ILA is defending against two of those assaults in court.

First is the case of Jackson v. City and County of San Francisco, in the U.S. District Court for the Northern District of California. The lawsuit challenges the city’s requirement that all firearms be stored inoperable in the home, which makes them useless for immediate self-defense -- exactly the type of restriction that the Supreme Court struck down in its Heller decision.  The case also challenges the city’s prohibition on the discharge of firearms within city limits and its ban on the sale of ammunition that “serves no sporting purpose” - in other words, self-defense ammunition.

Our efforts have already forced the city to amend its discharge ordinance to allow firearms to be used in self defense, as well as in other lawful circumstances.   The plaintiffs are currently awaiting a ruling on the city’s motion to dismiss, which was argued on May 5, 2011.

Washington, D.C.
Forbidden from banning handguns outright, the nation’s capital now requires would-be gun owners to pay a series of fees; pass a vision test, a training course, and a written test on D.C. gun laws; be photographed and fingerprinted; and submit pistols “for a ballistics identification procedure.”  Anyone who gets through all this is subject to re-registration every three years, with a new background check every six years, and has to tell the police if he or she changes jobs, moves, or even decides to keep the gun in a different part of the house.

Challenging those provisions in the case of Heller v. District of Columbia (also known as “Heller II”) are Dick Heller -- the lead plaintiff in the original case of District of Columbia v. Heller before the Supreme Court -- joined by longtime civil rights activist Absalom Jordan, Jr. and others.  In addition to the rest of District’s bureaucratic scheme, the District’s laws also denied the plaintiffs the right to register commonly owned firearms that D.C. considers “assault weapons,” or commonly owned handguns that use magazines that hold more than 10 rounds of ammunition. 

Although the Supreme Court’s Heller decision completely rejected the idea that rights could be restricted based on an “interest balancing” review of committee reports and other studies, the trial court in this case did just that, and upholding all of the challenged laws.  The plaintiffs appealed to the U.S. Court of Appeals for the D.C. Circuit and are currently awaiting a decision.

Public Housing
When is your house not your home? According to some local governments, when you live in public housing.  NRA-ILA has long fought against these gun bans, which target people who often can’t afford to mount legal challenges on their own, and who often live in the nation’s highest crime areas.

Most recently, in the NRA-ILA funded case of Scott v. District of Columbia Housing Authority (filed July 22), a resident of Washington, D.C.’s public housing system is challenging lease rules that forbid law-abiding residents from owning firearms for any lawful purpose.  The plaintiff, William L. Scott, is a 66-year old longtime tenant who owns a rifle and two shotguns, all legally registered in the District and formerly stored in his home. 

In January 2008, the District imposed a new lease provision that banned residents from possessing firearms.  Outrageously, the new rule was put in place months after the U.S. Court of Appeals for the D.C. Circuit had held that the Second Amendment protects a fundamental, individual right to keep firearms in the home for self-defense, a decision later affirmed by the U.S. Supreme Court in its June 2008 Heller decision.  In 2009 (after prompting by counsel acting on our behalf), the housing authority proposed a lease change to allow lawful gun possession in its properties. More than two years later, however, that proposal has still not been made final and Mr. Scott remains unable to defend himself in his own home.

Scott is not our only recent case on this issue.  NRA-ILA successfully challenged San Francisco’s ban on firearms in public housing immediately after the 2010 decision in McDonald.  We are also supporting a challenge to a similar ban in Wilmington, Delaware (Doe v. Wilmington Public Housing Authority), in which the housing authority has repeatedly amended its rules in an attempt to frustrate the lawsuit, while giving no real relief to the plaintiffs.

Defending Pro-Gun Laws
Not all NRA-ILA supported litigation is aimed at striking down bad laws.  Often, we are forced to go to court to help defend our pro-gun legislative advances. 

For example, one of NRA-ILA’s legislative priorities in recent years has been “parking lot” legislation that helps secure the right of employees and customers to store lawfully owned firearms in their locked vehicles while parked at businesses and other institutions.  When the University of Kentucky ignored that state’s law by firing graduate student Michael Mitchell from his university job, we filed an amicus brief arguing that both the state’s general gun transportation law and its worker protection statute fully protected Mr. Mitchell’s right to store his firearm in the glove compartment while on the job.  The appeal in Mitchell v. Univ. of Kentucky is currently pending before the Kentucky Supreme Court.

Just as worker protection laws were passed to protect the privacy rights of employees and customers, the Florida legislature recently passed a law to protect patients from intrusive and unnecessary questioning by doctors.  Unfortunately, some physicians have crossed the line between protecting patients’ safety and engaging in anti-gun advocacy.  To combat this, Florida’s new law prevents doctors from discriminating against gun owners, harassing patients about their exercise of the right to keep and bear arms, or retaining information about patients’ gun ownership except when “relevant to the patient’s medical care or safety, or the safety of others.”

Anti-gun medical groups and their members sued the state, seeking an injunction to block enforcement of the law.  NRA-ILA sought to intervene in the case (Wollschlaeger v. Scott), but that request was denied.  As a result, the state will defend the law, while we participate as amicus curiae, pointing out the many errors in the medical groups’ reading of the law and their long history of advocating the elimination of handguns from law-abiding Americans’ homes.  A decision is expected soon from the U.S. District Court for the Southern District of Florida.

Multiple Rifle Sales Reporting
In response to the Obama administration’s recent announcement that it will force the reporting of multiple rifle sales by federal firearm licensees in the Southwest border states, NRA-ILA filed three lawsuits on Wednesday, August 3 in federal court in Washington, D.C., Texas and New Mexico challenging the Bureau of Alcohol, Tobacco, Firearms and Explosives’ authority to demand this information.

J&G Sales, Ltd. And Foothills Firearms, LLC v. Melson; Ron Peterson Firearms, LLC v. Melson; and 10 Ring Precision, Inc. v. Melson each argue that the BATFE has no legal authority to require multiple sales reporting of long gun sales and must cease from doing so.  When Congress authorized the reporting of multiple sales of handguns in the 1968 Gun Control Act, it did not empower any federal agency to require similar reports for long guns.  Therefore, this recent action by the BATFE not only exceeds the Bureau’s legal authority, but also circumvents the will of Congress.

 

NRA-ILA Referrals and NRA-ILA Supported Litigation

Referrals
NRA-ILA maintains a list of attorneys who have identified themselves as willing to consider cases involving NRA members.  If a referral is given, the member must negotiate fees and arrangements with the attorney directly.  By providing referrals, we are not endorsing or recommending any attorney on the list for any purpose -- the attorneys on the list have simply asked to be placed on our list but have not been vetted by NRA-ILA.

Supported Litigation: How NRA-ILA Accepts Cases
NRA-ILA cannot generally insert itself into litigation in which we are not a party.  In order to get involved, we must be invited by a party or the court.  Feel free to let us know about cases that may be of interest; however, please do not contact us to become involved in cases to which you are not a party.

NRA-ILA generally assists in cases that affect the Second Amendment civil liberties or civil rights of large numbers of our members and gun owners in general, rather than those involving a dispute between individual parties. The basic questions we ask when reviewing a potential case are:

  1. Is this a significant Second Amendment civil liberties or civil rights issue or a vital but derivative civil liberties or civil rights issue?
  2. What effect will this case have on people other than the applicant?
  3. Do we have the necessary resources to take this case?

Unfortunately, despite the thousands of requests for assistance we receive each year, there are many legitimate and compelling cases in which NRA-ILA is simply unable to assist, as we do not have unlimited resources.  We regret that we cannot provide assistance in many cases even if they fall within the guidelines discussed above.  To that end, we encourage you to contact the NRA Civil Rights Defense Fund (www.nradefensefund.org), which provides legal and financial assistance to selected individuals and organizations defending their right to keep and bear arms. 

Important Note Regarding Deadlines
All legal claims have time deadlines. These deadlines may be different depending on the nature of the issue and the parties involved. For some kinds of civil cases, you may need to file a claim with a government agency before you can sue, and agencies have their own time deadlines.

If you do not comply with the applicable deadlines, you may be legally barred from pursuing your claim in court. Contacting us to describe your problem does not mean that we represent you, nor does it stop the statute of limitations from running. NRA-ILA cannot give you advice about the specific deadlines that apply to your case. To protect your rights, please consult an attorney promptly to find out what deadlines may apply to your particular situation.

 

Tell Us What You Think!

If you have any comments on the NRA-ILA Legal Update or suggestions for topics in which you would like to see us get involved, please e-mail us at legalupdate@nrahq.org.  Please do not send requests for legal assistance to this address; those should be sent to the attention of NRA-ILA Legislative Counsel via phone (703) 267-1161; fax (703) 267-1164; or e-mail at ILALegal@nrahq.org.

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