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California: Second Amendment Litigation

Friday, February 14, 2014

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.

 

Peruta, et al. vs. County of 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 trial court heard argument on the Plaintiffs’ motion for partial summary judgment.  In December 2010, the trial court denied Plaintiffs’ motion.  Although the trial court ruled that California law is constitutionally sufficient as it allows the unloaded open carrying of handguns, the court acknowledged a Second Amendment right to self-defense with a handgun outside the home. 

Plaintiffs filed an appeal with the Ninth Circuit Court of Appeals. Appellate briefing occurred through May 2011 to September 2011.  A substantial number of amici curiae briefs were filed on both sides, including briefs by the NRA and briefs by various police training organizations both in support of the Plaintiffs.

During November 2011, counsel for both sides filed several updates court on various cases and matters of potential import to the issues in Peruta.  But in December 2011, Peruta, along with other Second Amendment litigation in the Ninth Circuit, was stayed by order of the Ninth Circuit court pending hearing and resolution of a much older case involving gun shows.

On January 3, 2012, Plaintiffs’ counsel filed a motion to lift the stay as to Peruta, noting the significant differences in the issues between the cases.  On June 25, 2012, the Ninth Circuit lifted the stay.  The parties then continued to file updates with the court on various cases and matters of potential important.  On December 2012, the Ninth Circuit heard oral argument.

On February 13, 2014, the Ninth Circuit ruled in favor of Plaintiffs, reversing the trial court’s ruling and remanding it back to district court.  The ruling confirmed that the Second Amendment protects a right to bear arms for self‑defense beyond the threshold of the home and that general self-defense qualifies as “good cause” for the purpose of obtaining a concealed carry permit. 

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

In September 2012, Plaintiffs, Center for Biological Diversity, et al., 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.  The 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 Ninth Circuit Court of Appeals where the NRA, SCI, and the National Shooting Sports Foundation filed an amicus curiae brief in support of the U.S. Forest Services.

 

Heller, et al. v. 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 the 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.

 

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 District of Columbia 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 United States Supreme Court decided McDonald

Following reactivation of the Jackson case after McDonald, San Francisco moved to dismiss the complaint. After extensive briefing in September 2011, the district court denied San Francisco’s motion to dismiss, and on October 17, 2011, San Francisco finally filed its first answer to the 2009 amended complaint.  The case continued forward with San Francisco unsuccessfully trying to amend and change its ordinances to frustrate the suit.

On May 17, 2012, counsel Jackson, et al., filed a motion for partial judgment on the pleadings. The district court denied this motion on August 17, 2012.  Jackson, et al., then filed a motion for preliminary injunction on August 30, 2012. The district court rejected the motion for preliminary injunction on November 26, 2012.

After the court denied the motion for preliminary injunction, Jackson, et al., appealed to the Court of Appeals of the Ninth Circuit in December 2012.  After both parties submitted their briefs, which can be found here, here, and here, the Ninth Circuit heard oral arguments on October 7, 2013. 

 

Parker v. State of California ‑ Lawsuit successfully struck down main portions of California’s

AB 962, which would have banned mail order ammunition purchases and required registration and thumb-printing for in‑store purchases.  Plaintiffs defended against the State’s appeal of the 2011 decision to the California Court of Appeal, resulting in a 41‑page published opinion affirming the victory in full.  The case also set groundbreaking precedent on due process vagueness challenges confirming that gun laws must provide heightened levels of clarity in order to withstand vagueness challenges.  The case was also the basis for the Governor’s veto of legislation similar to AB 962 proposed while litigation was pending.  The state’s

petition for review was accepted by the California Supreme Court on February 19, 2014.

 

Bauer v. Harris - Federal court lawsuit challenges the California Department of Justice’s misuse

of DROS fee revenues collected from lawful firearm purchasers at the time of sale as violating the Second Amendment.  Discovery is being conducted and a motion for summary judgment should be expected from plaintiffs in the near future.

 

Challenges to Bans on Certain Magazines & Semiautomatic Firearms

Various NRA-supported lawsuits have been filed all over the country challenging laws banning magazines with the capacity to accept a certain amount of ammunition. These lawsuits are part of a coordinated national litigation campaign to confirm Second Amendment protections for standard‑capacity magazines. Some of those cases also challenge bans on so-called “assault weapons.” Those cases are:

New York State Rifle & Pistol Association v. Cuomo  Challenges New York’s ban on magazines capable of holding over ten rounds or containing more than seven rounds and ban on so-called “assault weapons” under the so-called SAFE Act. A decision was handed down in this case upholding the majority of the SAFE Act’s provisions on December 31, 2014. That decision was cross-appealed by both parties on January 3, 2014: New York for the court’s striking down of the 7-round magazine limit as arbitrary and three other provisions as unconstitutionally vague, and the NYSRPA for the rest of the SAFE Act which was deemed constitutional.

Shew v. Malloy – Challenges Connecticut’s extensive new batch of gun laws passed in the wake of the Newtown tragedy, including a ban on magazines capable of holding over ten rounds and ban on so-called “assault weapons.” On January 30, 2014, the court denied plaintiff’s motion for preliminary injunction and granted the defendant’s motion for summary judgment. That order will be appealed directly to the Second Circuit Court of Appeals.

Cooke v. Hickenlooper  – Challenges Colorado’s arbitrary ban on magazines capable of holding over 15 rounds. While parts of that case have been dismissed, it is proceeding on to the claims regarding the constitutionality of the ban on large-capacity magazines, mandatory background checks for the transfer of guns in private transactions, and whether the phrase “continuous possession” in regards to grandfathered large-capacity magazines is unconstitutionally vague. Plaintiffs are currently seeking declaratory and injunctive relief on the challenged statutes.

San Francisco Veterans Police Officers’ Association v. San Francisco – Challenges San Francisco’s ordinance banning the possession of magazines able to hold more than 10 rounds of ammunition. A motion for preliminary injunction was filed on December 27, 2013.  An order denying that motion was issued on February 19, 2014.  That order will be appealed directly to the Ninth Circuit Court of Appeals.

Fyock v. City of Sunnyvale – Challenges Sunnyvale’s ordinance banning the possession of magazines able to hold more than 10 rounds of ammunition. A motion for preliminary injunction was filed on February 7, 2014. Argument on that motion was heard February 21, and we are awaiting a ruling from the court any day.

 

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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.