NRA-ILA Legal Update | March 2012

Courts Split on Right to Carry Firearms Outside the Home

Unquestionably the hottest issue in Second Amendment litigation today is whether the Second Amendment protects a right to carry firearms outside the home for personal protection—and if so, what might be the limits on that right. Until recently, far too many courts have wrongly claimed that because the Supreme Court’s decisions in District of Columbia v. Heller and McDonald v. City of Chicago only struck down bans on handgun possession in the home, that’s all there is to the Second Amendment.

Now, there are signs that this resistance is weakening. In a big win for gun owners’ rights in Maryland, on March 5, a federal judge ruled in the case of Woollard v. Sheridan that a key provision of the state’s gun laws is unconstitutional.  Judge Benson Everett Legg declared that Maryland's requirement for a "good and substantial reason" to obtain a concealed-carry permit violates the Second Amendment protection of the right to keep and bear arms. Though this is not an NRA-funded case, both the result and the reasoning give hope for future progress on the issue.

"The Court finds that the right to bear arms is not limited to the home," Judge Legg wrote in his 23-page ruling. "In addition to self-defense, the right was also understood to allow for militia membership and hunting. To secure these rights, the Second Amendment’s protections must extend beyond the home: neither hunting nor militia training is a household activity, and 'self-defense has to take place wherever [a] person happens to be.'’'

Judge Legg added, "A citizen may not be required to offer a 'good and substantial reason' why he should be permitted to exercise his rights. The right's existence is all the reason he needs."

At press time, the state of Maryland planned to appeal the decision, and had already filed a motion asking Judge Legg to clarify whether he intended to impose an injunction against enforcement of Maryland’s current law.

Meanwhile, several NRA-supported cases are addressing the same issue. For example, the NRA has appealed a January 19 decision by a federal court in Texas, which held that the Second Amendment doesn’t protect any right to keep or bear arms outside the home.

The decision, handed down by U.S. District Judge Sam Cummings of the Northern District of Texas, came in the case of Jennings v. McCraw, in which a group of law-abiding 18- to 20-year old adults challenged the state law prohibiting issuance of concealed handgun licenses to persons under 21, who are treated as adults for virtually every other purpose under the law.  (The NRA is also a party on behalf of its members in this age group.)  

Judge Cummings ruled that it was unnecessary to address the state’s discrimination against young adults because “the right to carry a handgun outside of the home … seems to be beyond the scope of the core Second Amendment concern articulated in [District of Columbia v.] Heller.” In fact, the Supreme Court in Heller never said the Second Amendment doesn’t apply outside the home.  The court only said that the home is the place “where the need for defense of self, family, and property is most acute”—implying that there are other places where the need is less acute, but still exists.  Likewise, the Court suggested that it would uphold bans on carrying guns in “sensitive places”—which implies that carrying in places that are not “sensitive” would be protected under the Second Amendment.

Also on January 19, a federal judge in Chicago allowed NRA-supported plaintiffs to move ahead with a challenge to that city’s laws that ban anyone from possessing or carrying a handgun except in his or her home, and that ban possession or carriage of a long gun anywhere outside his or her home or place of business.

The case, Benson v. City of Chicago, challenges several of the anti-Second Amendment restrictions that were enacted days after the city’s handgun ban was struck down by the U.S. Supreme Court.  Other issues contested in the case include the city’s ban on nearly all firearm transfers and on the operation of gun stores, as well as its law that allows each Chicago license holder to keep only one “assembled and operable” firearm within the home.  

The city had argued that the carry challenge should be dismissed, claiming there was no way the courts could provide relief because the same conduct was prohibited statewide by Illinois law.  In the ruling, Judge Edmond E. Chang of the U.S. District Court for the Northern District of Illinois pointed out that Chicago’s ordinance actually was stricter than state law: Illinois does allow people to possess and carry guns in their places of business, or in another person’s home.

Other NRA-supported cases on the same issue include Peruta v. County of San Diego, which challenges discriminatory permit issuance under California law and Shepard v. Madigan, challenging Illinois’ complete denial of any lawful way to carry firearms for self-defense outside one’s home or place of business.  Peruta is pending in the Ninth Circuit U.S. Court of Appeals and Shepard is awaiting action in the U.S. District Court for the Southern District of Illinois.

End of the Road for Seattle Parks Gun Ban

Washington state’s Supreme Court has declined to review an October decision by the state Court of Appeals, which had found that the gun ban in Seattle’s parks is illegal. The March 7 order marks a final victory for Seattle-area gun owners, the National Rifle Association and the Second Amendment Foundation, who had joined together to block enforcement of the ban.

"The Washington Supreme Court made the right decision in recognizing that the city violated state law," said Chris W. Cox, executive director of the NRA's Institute for Legislative Action. "This decision is a clear indication why it's critically important for states to enact strong preemption laws, to prevent local governments from imposing a patchwork of firearm restrictions."

The case of Chan v. City of Seattle began in 2008, when the city of Seattle and then-Mayor Greg Nickels (D) enacted a rule that banned firearms and "dangerous weapons" from city parks, community centers and other city properties. In 2009, the city added another rule that banned guns from parks where children are "likely to be present."

In October 2009, the plaintiffs asked the King County Superior Court to strike down the ban as a violation of Washington's preemption statute, which forbids localities from enacting this type of ban. Specifically, the preemption statute says the state preempts the field of firearm regulation, and prohibits cities from regulating firearms—a position supported by an Oct. 2008 legal opinion from state Attorney General Rob McKenna (R).

In February 2010, the Superior Court struck down the rule, and the city appealed. In its Oct. 31, 2011 ruling, the Court of Appeals panel wrote: "We hold that under the plain language of [the state statutes], the City’s attempt to regulate the possession of firearms at designated park areas and park facilities open to the public by adopting the Firearms Rule, is preempted by state law." That decision is now the last word on the issue.

Colorado Supreme Court Rejects Campus Gun Ban

Showing once again that the Second Amendment isn’t the only way to attack anti-gun laws and regulations, the Colorado Supreme Court unanimously ruled on March 5 that the University of Colorado system can’t ban people from carrying guns on state university campuses. Because the state’s right-to-carry statute provided the answer to the question before the court, there was no need to address whether the policy violated the right to bear arms, as protected by the Second Amendment and the Colorado Constitution. The NRA participated by filing a “friend of the court” brief.

In Regents of the University of Colorado v. Students for Concealed Carry on Campus, the national pro-self-defense student group challenged the state university system’s ban on handgun carry by private citizens. The policy required violators (whether students, faculty, staff or visitors) to be banned from campus; student violators would be expelled.

The Colorado Supreme Court held that Colorado’s right-to-carry law was clearly intended to provide “statewide uniform standards” for concealed carry. The law expressly says that Colorado carry permits are “effective in all areas of the state” except in elementary and secondary schools, certain secure public buildings and places where guns are prohibited by federal law. That language, said the court, overrode the university system’s general power to regulate behavior on its campuses.

Second Amendment Victories for Public Housing Residents

An NRA-supported case has ended in victory for residents of the District of Columbia’s public housing system; the D.C. Housing Authority has finally admitted it cannot ban guns, and has changed its lease provisions to allow lawful gun possession in its properties. The case, brought by 66-year old William L. Scott, has now been dismissed in light of the District’s concession. This is an important victory, because gun bans in public housing are aimed squarely at low-income residents of high-crime areas, who may have an urgent need to be armed for self-defense.

The victory puts an end to the District’s defiance and foot-dragging in the face of multiple court decisions. The gun ban was put in place in January 2008, even though the U.S. Court of Appeals for the D.C. Circuit had already ruled that the Second Amendment protected D.C. residents’ right to keep firearms in the home. Only a year after that ruling was upheld by the U.S. Supreme Court in District of Columbia v. Heller—and with prompting by attorneys for the NRA—did the housing authority even propose amending its leases. But the new lease changes were never made final until now, months after Mr. Scott filed suit in July 2011.

Residents now must promise “Except as permitted by District of Columbia law to refrain from storing, maintaining, using, distributing, purchasing or selling any type of firearm or ammunition on the Leased Premises or the Development.”

The NRA is still supporting another challenge in Wilmington, Del. (Doe v. Wilmington Public Housing Authority), where the housing authority has repeatedly amended its rules in an attempt to frustrate the lawsuit, while giving no real relief to the plaintiffs.

Chicago Veteran Wins Licensing Case

In a welcome victory for Chicago gun owners, a Navy veteran of World War II and Korea has reached a settlement that will allow him to keep a firearm in his home.

In an NRA-supported case that drew attention even from Chicago’s local TV stations, LaFerena Batchelor, 85, had been denied a Chicago Firearms Permit (required to possess a gun in the Windy City) as a result of a 1996 incident at the home where he has lived since 1938. When Mr. Batchelor went to investigate noises in the back yard at 2:00 one morning, he armed himself with his legally owned .38 revolver and found himself confronted by a pair of large, menacing dogs. He scared the dogs off by firing two warning shots into the ground, but the police gave him a ticket for unlawfully discharging a firearm.

The minor incident resulted only in a $50 fine. Naturally, Mr. Batchelor could not have foreseen that in 2011, the city would interpret the 1996 episode as an “unlawful use of a weapon” and deny him a firearms permit. After a series of unsuccessful administrative appeals, he filed suit with NRA support, arguing that his right to keep and bear arms was infringed by this permit denial. After all, the violation didn’t disqualify him from possessing a firearm under federal or state law, and the city itself let Mr. Batchelor re-register his firearms for the next 15 years.

In the settlement, the city agreed that the unlawful discharge violation is not enough to disqualify a person from getting a permit.  Based on the settlement, the case has now been dismissed, and Mr. Batchelor has received his permit—along with the NRA’s gratitude for his service to our country.

New York: NRA Brief Defends Equal Rights for Part-Time Residents

On January 26, former U.S. Solicitor General Paul Clement filed the opening brief in an NRA-supported challenge to New York state licensing authorities who refuse to issue handgun permits to part-time residents.

Alfred Osterweil is a retired lawyer who has moved to Louisiana but keeps a summer home in New York. During the part of the year when Mr. Osterweil lives in New York, the state’s policy infringes his right to possess a handgun in the home for self-defense. In the Heller and McDonald cases, the Supreme Court protected that right for Washington, D.C. and Chicago residents, respectively, and as the brief puts it:

The fundamental right of self-defense is no less acute because one has more than one home, or spends less than twelve months per year in one’s home. To be sure, those likely to cause a confrontation or illegally enter a home will be neither impressed nor deterred by the part-time nature of a person’s occupancy.

The case, Osterweil v. Bartlett, is pending in the Second Circuit U.S. Court of Appeals.  Additional briefs will be filed over the next few months.

Federal Court Upholds Obama/Holder Gun Registration Scheme

On January 13, a federal district court in Washington, D.C. upheld an Obama administration policy that requires federally licensed firearms retailers in states bordering Mexico to report multiple sales of semi-automatic rifles.  The case, National Shooting Sports Foundation v. Melson, was brought by two NRA-backed firearms retailers and by the National Shooting Sports Foundation acting on behalf of its affected members.  Plaintiffs have already filed an appeal.

Devised by Attorney General Eric Holder’s Bureau of Alcohol, Tobacco, Firearms and Explosives, the plan requires all of the 8,700 firearm dealers in California, Arizona, New Mexico and Texas to report all sales of two or more semi-automatic rifles within five consecutive business days, if the rifles are larger than .22 caliber and use detachable magazines.  (The plaintiffs in the case pointed out that this was about 20 times more dealers than had been subject to any similar “demand letter” before, but the court nonetheless found the new requirement “limited in scope.”)

Two NRA-supported cases challenging the registration scheme are still pending in federal courts in Texas and New Mexico. In mid-February, the judge in the New Mexico case, Ron Peterson Firearms v. Jones, denied the government’s request to transfer the case to Washington, D.C.

Federal Court Finds No Right to Keep a Specific Gun

In a decision with disturbing implications, the Fifth Circuit U.S. Court of Appeals has held that the Second Amendment does not protect “a property-like right to a specific firearm.”

The case of Houston v. City of New Orleans began when Errol Houston Jr., an Army veteran and neighborhood watch captain with no criminal record, was arrested after a traffic stop. During the arrest, police seized Mr. Houston’s pistol. The district attorney refused to bring charges a month later, but police refused to return the pistol.

Nearly a year later, Houston filed suit to get his gun back, but was rebuffed by the trial court. That court held that Houston “does not have a Second Amendment right to the particular firearm seized,” that the retention of the gun was “reasonable … because firearms are needed as evidence” and that such seizures are “narrowly tailor[ed] … to those firearms involved in crimes and those firearms in possession of arrestees”—all in spite of the fact that the charges against Houston had long ago been dropped.

Unfortunately, the Fifth Circuit agreed with those arguments, saying that no Second Amendment violation had occurred because the city had not prevented Houston from keeping or obtaining other firearms.

In a strong dissent, Judge Jennifer Walker Elrod said the decision “contravenes” the Heller and McDonald decisions by treating the Second Amendment as a “second-class right.” As Judge Elrod noted, this would be comparable to a decision in a First Amendment case “that the Free Speech Clause affords no protection against the government preventing the publication of a particular editorial in the New York Times because there are plenty of other newspapers that might publish the piece.”

A “friend of the court” brief by the NRA pointed out that “access to a gun may be the difference between life and death” and that the Second Amendment itself was inspired by the Founders’ personal experiences of arms seizures throughout history. The brief went on to argue that a gun seized in the course of an arrest should only be retained if there is an ongoing, active prosecution or investigation.

Mr. Houston and his attorneys are now considering whether to seek review of the decision by the full Fifth Circuit. The NRA intends to remain involved in any further proceedings.

Supreme Court Upholds Broad Search and Seizure Authority

In a pair of disappointing rulings in Fourth Amendment cases, the U.S. Supreme Court has let stand broad search and seizure authority for law enforcement officials in cases that affect gun owners and hunters.

In the first, Messerschmidt v. Millender, the court upheld the constitutionality of a warrant authorizing police officers to search for any and all firearms, ammunition and accessories—even though the police had a description (and even a photograph) of the only gun known to be involved in the crime they were investigating.

The case began when police searching for a domestic assault suspect obtained a search warrant for 73-year-old Augusta Millender’s home in Los Angeles.  (Ms. Millender had been the suspect’s foster mother 15 years earlier.)  Based on the extremely broad warrant, the officers seized Ms. Millender’s shotgun, which clearly didn’t match the description or photo.  Ms. Millender then filed a civil suit against the officers.

Both the trial court and the Ninth Circuit U.S. Court of Appeals agreed with Ms. Millender that the officers could be sued, because the warrant failed to meet the Fourth Amendment’s requirement that warrants “particularly describ[e] the place to be searched, and the persons or things to be seized.”

In a “friend of the court” brief, the NRA and the California Rifle and Pistol Association Foundation argued that “Since firearms are lawful to possess and are constitutionally protected, no basis exists for a search warrant to seize them absent rigorous fulfillment of the Fourth Amendment’s probable cause and particularity requirements.”  The brief went on to explain that one of the original reasons for enactment of the Fourth Amendment was to prevent seizure of firearms.

The Supreme Court didn’t directly address the Second Amendment issues, but reversed the lower court rulings and upheld the warrant. The majority of justices thought a reasonable police officer could conclude that the warrant was legitimate, based on several aggravating factors in the case including the suspect’s “possession of one illegal gun, his gang membership, his willingness to use the gun to kill someone, and his concern about the police.” It’s possible that a similar broad warrant that wasn’t supported by facts like these might not be upheld in a future case.

In another disappointing development, the Supreme Court on March 5 declined to hear the case of Maikhio v. California, a challenge to the overly broad exercise of search and seizure powers by game wardens. The court issued no opinion, but the denial lets stand a California Supreme Court decision in an illegal fishing case; in that case, the court held that a game warden could stop a vehicle without a warrant or reasonable suspicion if the “game warden had reason to believe an occupant had recently been fishing or hunting.”  

A brief by the NRA and CRPAF argued that the California Supreme Court’s decision wrongly created a lower Fourth Amendment standard for hunters and fishermen, in violation of Supreme Court precedent and in spite of the long and honorable tradition of hunting and fishing in the United States.  

Three Wins for Hunters in Federal Court

Since late December, three federal courts have rejected moves by anti-hunting or environmentalist groups that would have limited hunting in the name of endangered species protection.

First, on December 28, 2011, the District of Columbia federal court confirmed that governmental agencies are not required to enact hunting regulations based on speculative arguments and specious science allegedly connecting hunting to endangered species mortality. Unfortunately, agencies, lawmakers and courts can often be prompted by junk science into taking actions that threaten our recreational shooting and hunting traditions.  In this case, however, NRA and SCI made sure that the NPS and the court looked at the entire universe of information available and made a well-reasoned decision that additional hunting restrictions were not needed.  

The ruling in Public Employees for Environmental Responsibility v. U.S. Dept. of the Interior upheld the National Parks Service’s 2010 denial of a petition that tried to force the NPS to adopt special hunting limitations, allegedly to protect desert tortoises in the Mojave National Preserve.    The NRA and Safari Club International intervened to protect the interests of hunters and recreational shooters, and were successful in helping prove that PEER’s lawsuit had no merit. The court threw out the lawsuit, explaining that in “the past, as now, there has been little data showing that small game hunters pose an actual threat to desert tortoises.”    

Next, on February 2, the U.S. District Court in Idaho rejected a petition to force the U.S. Fish and Wildlife Service to list the sage grouse as an endangered species—a listing that would require a ban on hunting the big birds, and potentially force restrictions on hunting any others species in the birds’ traditional range. While sage grouse populations have declined due to habitat loss, the FWS had rejected petitions for regulatory protection of the birds under the Endangered Species Act. This was a matter of agency discretion on the basis that resources were best expended in protecting species that face even more serious threats.

Environmental groups challenged that decision, in the case of Western Watersheds Project v. U.S. Fish and Wildlife Service. The NRA intervened in the case, again joining SCI in support of the agency’s decision. After a detailed analysis of the agency’s decision-making process, the court found that the agency’s actions were “not arbitrary and capricious” and therefore left the agency decision unchanged.

Finally, on March 14, the Ninth Circuit U.S. Court of Appeals upheld an NRA-supported law that directed the Secretary of the Interior to remove the northern Rocky Mountain gray wolf population from protection under the Endangered Species Act. The provision was an amendment to a comprehensive fiscal year 2011 appropriations bill, and reflected the latest move in a ten-year battle over delisting the wolves and allowing science-based management of the population, including management through hunting.

Immediately after the amendment was signed into law, anti-hunting groups filed the case (Alliance for the Wild Rockies v. Salazar), arguing that the amendment violated the separation of powers because the Congress had (they claimed) dictated the outcome of pending litigation on the wolf issue. Once again, the NRA, SCI and other pro-hunting groups intervened in defense of the congressional action.

The Ninth Circuit rejected the anti-hunters’ argument, agreeing with the NRA and other pro-hunting groups that the Congress had actually amended the Endangered Species Act, and that the changed law naturally affected the outcome of the cases.

The three cases together go to show that hunters face serious ongoing threats in the courts—but that the NRA will always take strategic action to fight back.

Other Cases Still Pending

For more detail concerning these cases, go to www.nraila.org/legalupdate/.

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 Carry Outside the Home

Shepard v. Madigan – challenges Illinois’ refusal to allow any carry outside one’s home or business for self-defense.

Illinois – “Assault Weapons” Ban

Wilson  v. Cook County (Illinois State Supreme Court) – challenges Cook County “assault weapon” ban. The state Supreme Court heard arguments on January 19.

NRA-ILA Referrals and NRA-ILA Supported Litigation

Referrals

The 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, 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 at (703) 267-1161; fax to (703) 267-1164; or e-mail to [email protected].