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
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.
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,
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
Capping a quarter-century of legislative victories on the right to carry firearms outside the home,
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
After the case was filed, the U.S. Court of Appeals for the Seventh Circuit decided Ezell v. City of Chicago (see discussion on
Four days after the council vote, NRA-ILA supported a group of
While Ezell was not NRA-ILA’s case, our more comprehensive challenge in Benson continues.
The state of
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
In 2009, anti-gun activists in
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.
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
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).
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.
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.
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
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
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
Just as worker protection laws were passed to protect the privacy rights of employees and customers, the
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
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:
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 [email protected]. 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 [email protected].