NRA-ILA Legal Update -- October 2011

Posted on October 15, 2011

Print
Email
Share

FEDERAL LAW

NRA Files Appeal of Ruling on Handgun Sales Age Limits
On Sept. 29, a federal judge in the Northern District of Texas decided in favor of the federal government in a case brought by the NRA challenging the federal restriction on the purchase of handguns by 18-20 year old adults. The case is far from over, as the NRA has already filed an appeal.

In the case, Jennings v. Bureau of Alcohol, Tobacco, Firearms and Explosives, the NRA and a group of responsible young adults argued that since 18-20 year olds are considered adults for virtually every other purpose, such as voting and military service, adults in this age group should also be able to purchase handguns from licensed dealers.

In the ruling, Judge Samuel Cummings wrote "the Court is of the opinion that the ban does not run afoul of the Second Amendment to the Constitution," and wrongly equated law-abiding 20-year-olds with criminals, stating that "the right to bear arms is enjoyed only by those not disqualified from the exercise of the Second Amendment rights."

"We strongly disagree with this ruling," said Chris W. Cox, Executive Director of the NRA Institute for Legislative Action. "As we said when we filed this case, adults 18 and up have fought and died for American freedom throughout our country's history. They are adults for virtually every legal purpose under federal and state law, and that should include the ability to buy handguns from licensed dealers to defend themselves, their homes and their families. Our fellow plaintiffs in this case are law-abiding and responsible young adults. We plan to defend their rights to the very end."

A similar case, in which many of the same plaintiffs challenge the state of Texas' ban on issuance of Right-to-Carry permits to adults under 21, remains pending in the same court.  That case is Jennings v. McCraw.

 

NRA Victory in Arizona Battle Over Use of Lead Ammunition
In a major legal victory, a federal judge has ruled in favor of the National Rifle Association and the federal Bureau of Land Management, throwing a lawsuit filed by an environmental group, the Center for Biological Diversity (CBD), out of U.S. District Court in Phoenix, Ariz. The case is Center for Biological Diversity v. U.S. Bureau of Land Management. Safari Club International had joined the case as a "friend of the court" and assisted NRA with its successful efforts.

CBD's lawsuit, filed on Jan. 27, 2009, alleged that the BLM and U.S. Fish and Wildlife Service were illegally mismanaging federal lands in Arizona. The lawsuit challenged the allowance of off road vehicles, construction of roads, inadequate protection of desert tortoises, and inadequate protection of California condors. Among other things, the suit sought to force BLM to ban the use of lead ammunition for hunting in the Arizona Strip, a rugged area in the northwest corner of the state renowned for great hunting. CBD contended California condors in Arizona and elsewhere were being poisoned from scavenging game that was shot by hunters using lead shot or bullets. But the record plainly shows that California condors were reintroduced to this area of Arizona based on express promises by FWS and other agencies that the reintroduction would not affect hunting.

Among other things, the Court ruled that CBD had waived its claims concerning BLM's failure to assess the alleged impact of lead ammunition on condors because "[i]t did not argue that BLM was required to include the potential effects of lead ammunition in [BLM's] analysis of environmental impacts."

Even before the ruling, NRA's intervention in the case on behalf of its members had already resulted in several legal victories. A Jan. 13, 2010 court ruling granting NRA's motion to intervene was recently published in the official Federal Rules Decision Reporter. The Federal Rules Decisions Reporter is a compendium of selected United States district court rulings that specifically interpret and apply the Federal Rules of Civil and Criminal Procedure. Publication of this court ruling is important to hunters and NRA members because it sets legal precedent by confirming that there is a "significantly protectable interest" in hunting that can justify intervention by hunter's rights groups like NRA in the increasing number of lawsuits filed by so-called environmental groups against state and federal natural resource, game and land management agencies.

To see key documents filed in this case, visit http://michellawyers.com/cbdvblm.

 

Court Denies Injunction on BATFE Long Gun Sales Reporting
Following the Obama Administration's move to require federal firearms licensees in the border states to report multiple sales of certain rifles, the NRA immediately began supporting litigation to enjoin this illegal action by the Bureau of Alcohol, Tobacco, Firearms and Explosives. Unfortunately, on Sept. 9, Judge Rosemary Collyer of the U.S. District Court for the District of Columbia denied NRA's motion for a temporary injunction, but set an expedited schedule to bring the case before the court for a final ruling with argument set for Oct. 25.

The three suits (J&G Sales, Ltd. 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 stop trying to do 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.

 

DISTRICT OF COLUMBIA

Appeals Court Rules Against D.C. Gun Owners in Heller II
In a split ruling in an ongoing NRA-supported case challenging the restrictive gun laws established by the Washington D.C. government in defiance of the Supreme Court's 2008 Heller decision, the U.S. Court of Appeals for the District of Columbia Circuit has upheld a number of highly restrictive gun laws.

Unfortunately, the court ruled that the District's general handgun registration requirement is constitutional.  However, the court reached that conclusion by misreading the Supreme Court's Heller decision as presuming that any type of "longstanding" restriction is constitutional, so it only upheld the more traditional aspects of the registration system, such as the requirements that the registrant provide his or her name and address, a description of the firearm and certain other basic information. 

By contrast, the court found that other D.C. requirements, such as fingerprints, a vision requirement, ballistics tests and mandatory training, were "novel" and therefore need to be reviewed again by a lower court under a tighter standard of scrutiny. Similarly, the court found that long gun registration is "novel" in the U.S. and returned that issue to the lower court as well.

D.C. laws banning "assault weapons" and magazines that hold more than 10 rounds of ammunition were also wrongly found to be constitutional. The Supreme Court said in Heller that "arms" are protected under the Constitution if they are "in common use," and the D.C. Circuit found it "clear enough in the record that semi-automatic rifles and magazines holding more than ten rounds are indeed in 'common use,'" based on Bureau of Alcohol, Tobacco, Firearms and Explosives production statistics showing that "1.6 million AR-15s alone have been manufactured since 1986," and that the banned magazines are even more prevalent. 

But the court also found -- based largely on the testimony of a Brady Campaign lawyer to the District of Columbia Council -- that "the District ha[d] carried its burden of showing a substantial relationship between the prohibition of both semi-automatic rifles and magazines holding more than ten rounds and the objectives of protecting police officers and controlling crime."

Fortunately, in a long and well reasoned dissenting opinion that may provide a road map for other courts, Judge Brett Kavanaugh rejected the majority's reasoning.  Rather than the "intermediate scrutiny" employed by the majority or any other "balancing test," Judge Kavanaugh would have applied a standard based on "text, history, and tradition."  Under that standard, he argued that "it would strain logic and common sense to conclude that the Second Amendment protects semi-automatic handguns but does not protect semi-automatic rifles," which "have not traditionally been banned and are in common use today."  Judge Kavanaugh also would have rejected the entire registration system, arguing that D.C.'s type of total gun registration system is not "traditional" and "remains highly unusual today."

The NRA strongly disagrees with the outcome, and is reviewing the decision and considering all options. "When it comes to self-defense, semi-automatic firearms of all types are an increasingly popular choice for most Americans, and the court itself admitted that semi-automatics are in common use, with millions of these guns sold in recent years," said Chris W. Cox, Executive Director of the NRA Institute for Legislative Action. "Law abiding residents of the District should have the same access to these tools as residents of nearly all of the 50 states."

  

STATE LAW

NRA Files "Friend of the Court" Briefs in Two Right-To-Carry Cases
NRA has filed friend of the court briefs in two separate cases involving the right to carry firearms outside the home for self-defense.

In 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. 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. 

In Richards v. Prieto, currently pending in the Ninth Circuit U.S. Court of Appeals in California, plaintiffs brought suit against Yolo County, Calif. Sheriff Ed Prieto for his refusal to issue carry permits to law-abiding applicants. The case was first heard in the U.S. District Court for the Eastern District of California, where the court ruled for the sheriff.

In both cases, the NRA, as the leading organization in the nation advocating for gun owners' rights and specifically in advocating for the passage of right-to-carry laws in the states, has lent its expertise on the issue by filing briefs in strong support of the right to carry.

The briefs stress that the right to carry is an important part of the fundamental right of self-defense. Additionally, the briefs counter the arguments that permit holders are a public safety threat. Specifically, the brief responds to Brady Campaign claims that passage of right-to-carry laws lead to increases in crime. In fact, the briefs show not only that crime does not increase in right-to-carry states, but that right-to-carry laws contribute to a reduction in crime. 

 

NRA-Backed Challenge to San Francisco Laws Moves Ahead
On Sept. 27, Judge Richard Seeborg of the United States District Court, Northern District of California, let plaintiffs move ahead with a case challenging San Francisco's enactment and enforcement of three city ordinances requiring firearms be disabled by a trigger lock or stored in a locked container, banning the sale of ammunition that "serves no sporting purpose," and prohibiting firearm discharges with no self-defense exception unduly burdens the right to self-defense.

The case of Jackson v. City & County of San Francisco, fully funded by the NRA and the California Rifle and Pistol Association Foundation, can now move forward on its merits. The case has already been successful in forcing the City to amend its discharge ban, a law that has been in place for some 73 years, to allow for discharges in self-defense, defense of others, and all other circumstances allowed for under state and federal law.

In February of this year, the City of San Francisco filed a motion claiming that plaintiffs had no standing (that is, no right to bring the suit) because the city did not enforce the laws in question.  Therefore, claimed the city, the plaintiffs have no legitimate fear of prosecution and suffer no injury by complying with the law.

In his ruling, Judge Seeborg rejected the city's effort to have the case thrown out, ruling that the plaintiffs have "adequately alleged an intent and desire to engage in conduct that is prohibited by the ordinances but which they contend is constitutionally protected."

The full text of the court's order can be viewed here at www.calgunlaws.com.

  

NRA, CRPA Open New Front with Challenge to California Gun Sale Fees
The National Rifle Association and the California Rifle & Pistol Association Foundation have filed suit in the U.S. District Court for the Eastern District of California challenging the Dealer Record of Sales (DROS) fees charged by the California Department of Justice on gun sales on the grounds the fees are being misused.

The funds were originally established to pay for the administrative process to complete background checks. This year, Gov. Jerry Brown signed SB 819, which authorizes the funds to be used to pay for the enforcement of California's growing number of anti-gun laws.

NRA and CRPA fought against passage of SB 819 because it places the financial burden for enforcing California's unfair gun laws on the backs of law-abiding gun owners. The result will almost certainly be a depletion of DROS funds, leading to additional increases in the fees gun buyers will be forced to pay.

The suit filed by NRA and CRPA, Bauer v. Harris, challenges the DROS fees as an unconstitutional infringement on the exercise of rights protected under the Second Amendment. If successful, the suit will reverse the damage done by the passage of SB 819 by limiting the fees or eliminating them.

 

Court Blocks Enforcement of Florida Law Restricting Patient Harassment by Doctors
Earlier this year, the Florida Legislature passed, and Gov. Rick Scott signed, a law designed to stop anti-gun activism from interfering with proper medical care and patient privacy.  The law prohibits health care practitioners from asking questions or recording information about patients' gun ownership when the information is not necessary for the patient's medical care or the safety of others. It also prohibits practitioners from discriminating against gun-owning patients and from unnecessarily harassing patients about gun ownership.

Anti-gun doctors, along with the Florida chapters of the American Academy of Pediatrics and the American Academy of Family Physicians, with legal assistance from the Brady Campaign, challenged the law in federal court within days of its signing.  The doctors petitioned the court to declare the law unconstitutional and asked for an injunction against the enforcement of the law pending that decision.  (The case is Wollschlaeger v. Farmer.)

The NRA petitioned the court to intervene in the case, which would have allowed us to be a full participant in the legal proceedings. Plaintiffs opposed the NRA's participation, and U.S. District Judge Marcia Cooke denied the petition.  The NRA was still able to weigh in with a "friend of the court" brief arguing that the plaintiffs had misread the law, which is much less restrictive than the plaintiffs claim.

Unfortunately, Judge Cooke read the law in a much more restrictive manner, and on Sept. 14 issued a preliminary ruling that the law improperly restricts the free speech rights of doctors. She also found that questions by a doctor regarding gun ownership do not interfere with Second Amendment rights. The judge issued a temporary injunction against the enforcement of the law, but clearly indicated her final decision would make that injunction permanent.

The state is expected to appeal the ruling when it becomes final.

 

NRA Supports Illinois Gun Owners in Cook County "Assault Weapon" Case
The case of Wilson v. Cook County, now pending before the Illinois Supreme Court, challenges Cook County's ultra-broad ban on semi-automatic firearms. The case is an important test of what firearms are protected by the Second Amendment, challenging the constitutionality of a county ban on possession of "assault weapons." The Cook County ban criteria are even stricter than those used in the California ban on which the Cook County law was based.

The suit was originally brought by the Illinois State Rifle Association before the McDonald decision. The Illinois Supreme Court held the petition pending the outcome in McDonald, then sent the case back to the lower courts for reconsideration in light of McDonald. NRA provided assistance at that point by providing nationally recognized counsel to the plaintiffs.

When the lower courts stuck to their prior rulings almost without change, the Supreme Court granted review. NRA took additional steps by coordinating the filing of five separate "friend of the court" briefs. The case continues to be briefed and argument has not been set.

 

SKS Rifle Owner Prevails in Chicago "Assault Weapon" Case 
In a case supported by the NRA, David Lawson, who had previously been a plaintiff in McDonald v. Chicago, challenged the decision by the City of Chicago not to allow him to register two normal SKS rifles with fixed ten-round magazines. Although the rifles do not meet Chicago's definition of an "assault weapon," Chicago refused registration because they were "convertible" into "assault weapons."  The city denied the registration in spite of the fact Chicago has a separate provision for dealing with registered rifles that are converted into "assault rifles" after registration.

Following an initial rejection and preliminary appeal before a hearing examiner, the case was appealed to the City Court. The judge ruled the hearing examiner had to take evidence as to whether the guns were actually capable of accepting a detachable magazine, which is one of the criteria to define a rifle as an "assault weapon," and sent the case back to the hearing examiner.

At the hearing, Mr. Lawson and his counsel presented the SKS rifles for examination by the court, but the two "expert witnesses" for the City, both police officers, refused to even touch them. The judge ruled in favor of Mr. Lawson and ordered the rifles to be accepted for registration.

This case shows how far the city will go to deny law-abiding citizens their Second Amendment rights, refusing to abide by its own regulations until forced by the court.

 

Cases Still Pending
For more detail concerning these cases go to /Legislation/Federal/Read.aspx?id=7143

California – Challenge to "May Issue" Carry Law
Peruta v. County of San Diego, (U.S. Court of Appeals for the Ninth Circuit) -- challenges San Diego County Sheriff William Gore's refusal to issue carry permits to qualified applicants.

California – Ban on Online Ammunition Sales
Parker v. California (Fresno Superior Court) – challenges a ban on direct mail order and online purchases of ammunition. The state of California has filed an appeal to the permanent injunction on the enforcement of the law which was issued in January.

Delaware – Second Amendment Rights in Public Housing
Doe v. Wilmington Public Housing Authority – challenges restrictions on firearm ownership for residents of public housing.

Illinois – Ban on Gun Stores in Chicago
Benson v. City of Chicago (U.S. District Court, Northern District of Illinois) -- challenges the ban on gun stores in the city of Chicago.

New York -- Handguns for Part-Time Residents
Osterweil v. Bartlett (Second Circuit U.S. Court of Appeals) -- challenges New York state law that prevents part-time residents from getting permits to possess handguns in their homes.

Washington, D.C. – Second Amendment Rights in Public Housing
Scott v. District of Columbia Housing Authority  – challenges restrictions on firearm ownership for residents of public housing.

 NRA-ILA Referrals and NRA-ILA Supported Litigation

Referrals
NRA 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 the NRA.

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 at (703) 267-1161; fax to (703) 267-1164; or e-mail to ILALegal@nrahq.org

Print
Email
Share