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In the Courts: Battles New and Old

Thursday, August 15, 2013

As every NRA member knows, the last six months have been challenging times for Second Amendment supporters. But while most of the attention has been focused on legislative battles, there has been plenty of action in the courts. While new and sweeping state anti-gun laws have forced new litigation upon us, other court actions show how our litigation strategy can lead to positive legislative change.

Defending Guns and Magazines

One of the earliest and most publicized anti-gun laws of the year was New York’s Secure Ammunition and Firearms Enforcement (SAFE) Act, rammed through the state legislature by Gov. Andrew Cuomo after suspension of the usual three-day pre-vote waiting period required by the state constitution. (Anti-gun activists only like waiting periods that don’t apply to them.)

Now, Gov. Cuomo faces a counter-attack. He’s the defendant in a suit in which the NRA is assisting the New York State Rifle and Pistol Association, the Westchester County Firearm Owner’s Association, the Sportsmen’s Association for Firearm Education and the New York Amateur Trap Association, along with several businesses and individuals, in challenging some of the worst provisions of the law.

A main point of attack in the case is the safe Act’s convoluted new rules on ammunition magazines the state considers “large.” Possession of magazines that “have a capacity of or can readily be restored or converted to accept” more than seven or 10 rounds is prohibited. Those who currently have eight- to 10-round magazines can keep them, but not load them with more than seven rounds (except at a range or competition). The possession or transfer of magazines holding more than 10 rounds, which had been “grandfathered” under the state’s 1994 magazine ban, is outlawed entirely. All newly acquired magazines must hold seven rounds or fewer.

Further complicating things, on March 29, Gov. Cuomo signed another law indefinitely suspending the safe Act’s ban on magazines holding eight to 10 rounds, after he admitted that no seven-round magazines or smaller exist for many guns. That point had already been made by the plaintiffs, who also pointed out that in District of Columbia v. Heller, the U.S. Supreme Court made clear that the Second Amendment protects arms that are in common use. Unquestionably, that would include the magazines targeted by New York, which are so popular that lower-capacity substitutes are impossible to find.

The plaintiffs also argue that having a lower magazine-capacity limit for home protection than for target practice and competition violates the Constitution’s guarantee of equal protection under the law—creating “discrimination against homeowners who wish to protect themselves and their families from violence, and in favor of persons involved in mere sporting activities.” Among the homeowners who face that discrimination are the individual plaintiffs in the case, who have physical disabilities—such as the loss of a hand—that make rapid reloading extremely difficult. (The same points are being raised in a suit challenging Connecticut’s new gun and magazine ban, filed by a coalition of law-abiding gun owners led by the Coalition of Connecticut Sportsmen and the Connecticut Citizen’s Defense League.)

A similar suit challenges Colorado’s new 15-round magazine limit, passed in May and set to take effect July 1. Colorado’s law has unique problems all its own, such as language that can be interpreted to ban nearly all magazines—even those permanently attached to a firearm—and language prohibiting any magazine that is “designed to be readily converted” to a capacity greater than 15. The problem—as any gun owner knows—is that most magazines are made with removable floor plates or end caps, which could allow the attachment of aftermarket or homemade parts that might increase capacity to more than 15 rounds. It’s also impossible for the average gun owner to know whether the designer of a particular magazine “designed” it to be readily convertible.

Figuring that out is just as hard for law enforcement officers, which is why the lead plaintiffs in the case are 55 of Colorado’s 64 county sheriffs. The sheriffs make a critical point: Restrictive gun laws are a burden not only on gun owners, but on those who have the responsibility to enforce the laws. Just like private citizens, Colorado sheriffs have no way to judge the intent of a magazine designer. They also usually have no way to determine whether a magazine possessed in Colorado was made before or after July 1, 2013, and no way to tell whether a “grandfathered” magazine was in “continuous possession,” as required by the law. 

Colorado’s sheriffs aren’t the only law enforcement officials who are skeptical about these new laws. In the New York case, a “friend of the court” brief supporting the plaintiffs was filed by the New York State Sheriffs’ Association, the Law Enforcement Legal Defense Fund, the Law Enforcement Action Network, the International Law Enforcement Educators and Trainers Association, and several county sheriffs. That brief makes clear that many of the firearms banned by Cuomo’s legislation are chosen by law enforcement officials and private citizens to defend their homes, and that the new law does “not serve to increase the safety of New York residents.”

Illinois: Litigation Leads to Legislation

While state-level attacks on popular firearms and on private firearm transfers have been the focus of most attention, another major front in the battle involves Right-to-Carry litigation. The epicenter of this litigation is in Illinois—still, as this article goes to press, the only state with no law on the books to provide a legal way for residents to carry firearms for self-defense outside their homes or businesses.

But that may be changing, and soon. On Dec. 11, the U.S. Court of Appeals for the Seventh Circuit struck down Illinois’ near-total carry ban, in a decision covering both the NRA-funded case of Shepard v. Madigan and a similar non-NRA case, Moore v. Madigan. As we reported in the March issue of this magazine, Judge Richard Posner said it was “irrational” to think that the Second Amendment could apply only inside the home. On Feb. 22, the full appeals court refused the state’s request to rehear the case.

The December ruling gave the Illinois legislature until June 9 to write a new law that complies with the Second Amendment, and the legislative wrangling began immediately. The result at the end of the session on May 31 was a “shall issue” permit bill. Contrary to the wishes of Chicago politicians, the bill would make permits valid throughout the state, and even preempt local ordinances such as Chicago’s firearm permit scheme. But it would also impose major restrictions on where firearms may be carried, and leave intact far too many local restrictions unrelated to handgun carrying.

But even if anti-gun Gov. Pat Quinn (D) signs the bill, the state may decide—by the time you receive this magazine—to appeal the case to the U.S. Supreme Court. Next month, we’ll have in-depth coverage of the outcome of this epic battle, but at least it clearly shows how a smart litigation strategy can lead to legislative change.

While the next chapter of the Shepard case is uncertain at the moment, NRA-ILA didn’t wait to take quick action to back up the Seventh Circuit’s December decision. On Jan. 18, another NRA-supported case (Hall v. Chicago) was filed, challenging Chicago’s local carry ban. The Chicago law is even more restrictive than the statewide law; it bans carrying firearms anywhere outside the walls of one’s residence or place of business, including an unattached or attached garage and “any space outside the dwelling unit, including any stairs, porches, back, side or front yard space.” At a place of business, residents cannot possess handguns, so they can only use long guns for self-protection.

Illinois isn’t the only state where Right-to-Carry litigation is going on. On March 21, in the non-NRA case of Woollard v. Sheridan, a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit upheld Maryland’s requirement that a permit applicant have “good and substantial reason” to carry a handgun. (A request for review by the full Fourth Circuit is now pending.) Also still pending are a fistful of cases in the Ninth Circuit brought by the NRA and others, challenging permit issuance policies in several California counties and in the state of Hawaii.

Other Battles

Needless to say, these are just a few of the cases we’re involved in, either directly or by filing “friend of the court” briefs. Some of the others currently on appeal include challenges to federal and state age limits on buying and carrying handguns; to the Obama/Holder Justice Department’s scheme for registering rifle sales in the border states; to San Francisco’s gun storage rules and ban on common self-defense ammunition; and to New York City’s restrictions on gun transportation by lawful handgun owners.

However any of these cases may turn out, we remain thankful for the support of NRA members, without whom we would not be able to keep up the fight.

Full reports on these cases appeared in the June 2013 edition of NRA-ILA’s Legal Update newsletter. For the latest news on our litigation activities, subscribe online at www.nraila.org/legalupdate.

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Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.