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NRA-ILA Legal Update | June 2013

Legal Update


It has been several months since the last edition of Legal Update, but not because these have been slow times for Second Amendment supporters. While most of our attention (and the media’s) has been focused on legislative battles, there has been plenty of action on pending court cases—and, unfortunately, new litigation has become necessary in several states.


                Suit Filed to Strike Down New York’s “SAFE” Act


On February 28, NRA President David Keene addressed a rally gathered in Albany, N.Y. to protest the New York Secure Ammunition and Firearms (SAFE) Act, telling the crowd of more than 10,000, “We’ll help you overcome these statutes in court.” On March 21, the NRA made good on that promise, assisting the New York State Rifle and Pistol Association, the Westchester County Firearm Owner Association, the Sportsmen’s Association for Firearm Education and the New York Amateur Trap Association, along with several businesses and individuals, in filing suit. The defendants are Governor Andrew Cuomo, Attorney General Eric Schneiderman, and other state officials.


For those unfamiliar with New York’s most recent foray into gun control and bad governance, here is a rundown. After several days of closed-door meetings and deal making, on Jan. 14, Gov. Cuomo sprung the SAFE Act bill on the state Senate only twenty minutes before a scheduled vote. The Senate passed the measure, the House approved it the following day and Cuomo signed it immediately. To bypass any legislative debate, Cuomo invoked a “message of necessity,” eliminating the three-day waiting period before legislation may receive a vote, as required by the state constitution. The whole process was described in the New York Times as “classic Cuomo” where “Eggs are broken, speed rules, an open process is sacrificed, and results are achieved—sometimes triumphant, often jagged and imperfect.”


“Imperfect” was right. The Times went on to explain, “Before New York’s new gun control law was even passed, lawmakers were acknowledging that they would have to pass a second measure to clean up some of its errors.” The law’s wide-ranging attack on the rights of gun owners had many significant flaws. The complaint in the case tackles many of the most offensive parts of the new law, including the prohibitions on many popular magazines and semiautomatic firearms, the registration of previously “grandfathered” semiautomatics, and prohibitions on ammunition transfers.



                Colorado Sheriffs Launch Challenge to Magazine and Private Transfer Ban


While anti-gun legislation rarely comes as a surprise in the Northeast, anti-gun activists were especially proud to pass New York-style gun control in Colorado. What they may not have counted on was determined opposition in the courts—led by most of the state’s top elected law enforcement officials.


On May 17, 54 of 64 Colorado county sheriffs, joined by several other groups representing gun owners, filed a complaint for declaratory and injunctive relief to halt the enforcement of HB 1224, a ban on magazines holding more than 15 rounds, and HB 1229, which restricts the ways in which gun owners may lawfully transfer firearms. Signed into law by Gov. John Hickenlooper (D) on March 20, the laws are set to take effect on July 1. NRA counsel is providing assistance to our fellow gun rights advocates and working on behalf of the rights of the disabled plaintiffs.


HB 1224 bans the sale and transfer after July 1 of magazines capable of holding more than 15 rounds of ammunition. Complicating matters is the problematic wording of the law, which can be interpreted to ensnare nearly all magazines—even those permanently attached to a firearm. The legislation prohibits any magazine that is “designed to be readily converted” to a capacity greater than 15.




Suit Forces Maryland to Clarify Gun Transfer Rules



With Maryland residents forced to wait up to 10 weeks for the approval of an application for the transfer of regulated firearms” (handguns or certain semi-automatic long-guns), in mid-June the Maryland State Police and Attorney General finally clarified their position on the state law governing the transfer process. The state was forced to do so by an NRA-sponsored lawsuit filed on behalf of several Maryland residents, along with groups including Associated Gun Clubs of Baltimore, the Maryland Licensed Firearms Dealers Association and Maryland Shall Issue.


Like many of their counterparts in the rest of the country, in late 2012 and into 2013, Maryland residents--rightly fearful of new restrictions on their right to keep and bear arms--purchased firearms in record numbers. But unlike in most states, purchases of handguns or certain semi-automatic long-guns in Maryland require a seven-day waiting period, during which a background check is conducted by the state police. Unprepared for such demand, the Maryland State Police soon became backlogged with applications, forcing prospective gun buyers to wait months to have their purchases approved in some cases.




State Organizations Lead Charge Against Connecticut Gun Law



On April 4, Connecticut Gov. Dannel Malloy (D) signed the inappropriately named “Act Concerning Gun Violence Prevention and Children’s Safety.” On May 22, a coalition of law-abiding gun owners led by the Coalition of Connecticut Sportsmen and the Connecticut Citizen’s Defense League, along with businesses and individuals, filed suit to strike down this new burden to lawful gun ownership. As explained in the complaint, the suit seeks to “vindicate the right to the people of the State of Connecticut to keep and bear arms under the Second Amendment to the United States Constitution.” The NRA is assisting in this litigation.


The “Constitution State’s” unconstitutional legislation is a wide-ranging attack on the Second Amendment that seeks to burden law-abiding gun owners in every facet of exercising their rights. The law immediately bans the sale and transfer of all magazines with a capacity greater than 10 rounds; bans more than 100 semiautomatic rifles and pistols by name; bans those under 21 from purchasing semi-automatic centerfire rifles; and criminalizes the transfer of any firearm that is not conducted through a federally licensed dealer and subject to federal paperwork. Additionally, those using magazines with a capacity greater than 10 rounds for self-defense are barred from loading more than 10 rounds into the magazine, and a magazine cannot be carried for self-defense if it extends below the bottom of the pistol grip—language that potentially encompasses the vast majority of pistol magazines.




Illinois Right-to-Carry: Litigation Leads to Legislation



While recent state attacks on popular firearms and on firearm transfers have been the focus of attention, another major front in the battle involves Right-to-Carry litigation. The epicenter of this litigation is in Illinois—still, as this edition of Legal Update goes out, the only state with no law on the books to provide a legal way for residents to carry firearms for self-defense outside one’s home or business for self-defense. But that may be changing, in a way that shows the complex relationship between legislation and litigation.


First, in a major victory for the right of self-defense outside the home, on Dec. 11, 2012 the U.S. Court of Appeals for the Seventh Circuit struck down Illinois’ ban on carriage. In a decision covering the NRA-backed case of Shepard v. Madigan and a similar non-NRA case, Moore v. Madigan, the court rejected the often-heard claim that the Second Amendment’s protections apply inside the home but not outside, calling such a distinction “irrational.”




Hall v. Chicago Right-to-Carry Case Moves Forward



On January 18, following the Seventh Circuit decision striking down Illinois’ ban on carrying firearms outside the home, another NRA-supported lawsuit was filed to ensure that Chicago abides by the Seventh Circuit ruling and offers Chicago residents the opportunity to protect themselves outside their homes.


In the Hall v. Chicago complaint, the lawyers for plaintiffs Michael Hall and Kathryn Tyler make clear that Chicago’s carry ban should be voided as it is even more restrictive than the state ban struck by the Seventh Circuit. They note that Chicago’s ban extends to 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.” Additionally a person would be unable to take a firearm to and from his home and business as a firearm registration certificate “shall only be valid for the address on the registration certificate.”




Coast-to-Coast Action in Right-to-Carry Cases



Just a week before December’s NRA victory in Shepard v. Madigan, the San Francisco-based U.S. Court of Appeals for the Ninth Circuit heard arguments against the abuse of California’s permitting structure by local authorities. The NRA-backed case of Peruta v. County of San Diego targets San Diego County, and Richards v. Prieto (a non-NRA case) challenges the practices of Yolo County.


At issue in both cases is the California law that says a resident may only receive a carry license if he or she shows “good cause.” Issuing authorities such as county sheriffs or police chiefs have significant leeway in how “good cause” is interpreted, with some officials granting nearly every permit when the applicant passes a background check, and others imposing a nearly impossible standard. Further burdening the right, in 2011, California banned the unlicensed open carry of unloaded handguns, making it impossible to legally carry a handgun in any condition for self-defense outside the home without a license.




NRA and CRPA Orange County Carry Suits Lead to Appeal



Opening another front in the Right-to-Carry battle, on Sept. 5, a lawsuit backed by the NRA and the California Rifle and Pistol Association was filed against Orange County, Calif. and Orange County Sheriff Sandra Hutchens in the U.S. District Court for the Central District of California. The suit (McKay v. Hutchens) was filed on behalf of several Orange County residents who have been denied carry licenses and seeks to remedy Sheriff Hutchens’ discriminatory licensing practice of requiring “good cause,” which the complaint defines as “a special or contemporaneous ‘need’ to defend oneself—something more than ‘general concerns about personal safety.’”


The complaint argues that bans on the open carry of unloaded handguns and long guns without a license, combined with a discriminatory licensing procedure for concealed carry, infringe on “the right of law-abiding, competent adults to ‘possess and carry weapons in case of confrontation,’” as stated in Heller.




Part-Time Residents’ Gun Possession



Addressing a longstanding injustice that affects retirees and others who divide their time between different states, the case of Osterweil v. Bartlett challenges New York’s refusal to issue handgun permits to part-year residents. The plaintiff lives part of the year in Louisiana and part of the year in upstate New York, where local authorities denied him the permit that is required to possess any handgun in the home under New York law.


Mr. Osterweil (a retired lawyer) sued, rightly arguing that the right to keep arms in one’s home is not limited to full-time residents. Unfortunately, in May 2011, a federal district judge rejected his claim. Relying on decisions handed down before Heller, the court ruled that because it’s harder for New York to track the eligibility of part-time residents, licenses can fairly be limited to “those people who have the greatest contacts with New York.”




Fifth Circuit Wrongly Upholds Ban on Young Adults’ Handgun Purchases and Right-to-Carry



On Oct. 25, the U.S. Court of Appeals for the Fifth Circuit upheld the federal law that bans dealer sales of handguns to law-abiding adults between the ages of 18 and 20. The decision, in the case of National Rifle Association v. Bureau of Alcohol, Tobacco, Firearms and Explosives, involved a challenge to the law by several young adults, joined by the NRA on behalf of its members in the same age group.


In our briefs, we pointed out that the age limit is inconsistent with the laws America’s founders passed—such as the Militia Act of 1792, which required 18-year-olds to arm themselves for militia service. The age limit is also in conflict with court decisions interpreting other constitutional rights such as the First Amendment’s protection of free speech, as seen in a Second Circuit ruling that barred New York City from restricting the retail sale of spray paint and permanent markers to those under 21 in an attempt to combat graffiti.


Most important, though, is that the age limit is inconsistent with the Supreme Court’s decision in Heller, which found that the Second Amendment protects the right of “all Americans” to keep and bear arms—handguns in particular—for self-defense.




Federal Court Upholds Obama/Holder Gun Registration Scheme



On May 31, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit upheld the Obama administration policy that requires federally licensed firearms retailers in states bordering Mexico to report multiple sales of certain semi-automatic rifles. The case, National Shooting Sports Foundation v. Jones, was brought by two NRA-backed firearms retailers and the National Shooting Sports Foundation acting on behalf of its members in the Southwest.


The requirement imposed by the Bureau of Alcohol, Tobacco, Firearms and Explosives forces all licensed 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.




Florida Firearm Owners’ Privacy Act Under Review



On June 29, 2012 a federal district court in Florida blocked enforcement of several provisions of the state’s Firearm Owners’ Privacy Act, resulting from the case Wollschlaeger v. Governor State of Florida.


The 2011 law was enacted to stop activist doctors from pushing an anti-gun agenda upon the residents of Florida by unnecessarily inquiring about patients’ gun ownership, and to protect patients’ privacy by making sure doctors cannot record gun ownership information in a patient’s medical file. Under the law, medical professionals and insurance companies are also not allowed to discriminate against patients based upon gun ownership. The law also makes clear that patients have a right to refuse to answer health practitioners’ questions about gun ownership. The legislation was inspired by the experiences gun owners have faced while receiving medical treatment from anti-gun doctors.


The law is not an outright ban on doctor-patient speech, as has been portrayed in the media. It provides clear exceptions for gun ownership information that is “relevant to the patient's medical care or safety,” and for medical personnel to inquire about gun ownership or possession in an emergency. It also does not stop interested patients from inquiring with their physician about firearms.




Appeals Under Way in Challenge to San Francisco Laws



On Nov. 26, a federal judge denied the plaintiffs’ motion (in the case of Jackson v. City & County of San Francisco) for a preliminary injunction to prevent San Francisco from enforcing its locked-firearm-storage requirement and its ban on the sale of popular ammunition that “serves no sporting purpose.”


The storage provision requires the locked storage of all handguns inside the home unless “carried on the person.” In opposition to the requirement, the motion cited Heller’s recognition that defense inside the home is the core of the Second Amendment right and argues that the storage requirement clearly conflicts with this finding. Quoting Heller, the motion said, “‘whatever else [the Second Amendment] leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home,’” which should make restrictions like the storage law “subject to the highest level of scrutiny.”


On the ammunition ban, the motion pointed out that ammunition is clearly protected under the Second Amendment, and no historical justification exists for curtailing the sale of certain types of ammunition. Therefore, under the view of the Second Amendment adopted in Heller, San Francisco’s ban must be invalid.




Judge Throws Out One Suit to Ban Traditional Ammunition, While Another Continues



On May 23, a judge for the U.S. District Court for the District of Columbia threw out a case brought by the Center for Biological Diversity, which sought to force the Environmental Protection Agency into overstepping its congressionally designated authority by banning lead ammunition.


The suit began in 2012, following the EPA’s rejection of a CBD petition urging the EPA to regulate traditional ammunition. Throughout the dispute, the radical anti-hunting group relied on an incorrect reading of the Toxic Substances Control Act, arguing that the EPA has the authority to regulate lead bullets as components of ammunition. In fact, in 1976 pro-gun lawmakers foresaw exactly this type of problem and added language to the legislation specifically exempting ammunition from its terms. Despite these repeated rebuffs and the plain language of the TSCA, CBD has continued its campaign against hunters and shooters.


Undeterred by their failure with the EPA, CBD is now trying to get the United States Forest Service to ban lead for hunting under the Resource Conservation and Recovery Act, known as RCRA.



Other Pending Cases
The following are just a few of the other key NRA-supported cases still working their way through the courts.

Illinois: Illinois Association of Firearm Retailers v. City of Chicago (formerly known as Benson v. City of Chicago) Challenges Five Aspects of Chicago's Law

New York: New York State Rifle & Pistol Association v. City of New York challenges New York City’s Pistol Permits law

Delaware: Doe v. Wilmington Housing Authority, Challenging the Housing Authority’s Ban on Gun Possession by Tenants, Changed Significantly

Illinois: Circuit Court of Cook County Denied Motion for Temporary Restraining Order in Firearms Tax Case
Your State Gun Laws at a Glance Tell Us What You Think


The NRA maintains a list of attorneys who have identified themselves to us as being willing to consider cases involving NRA members. If a referral is given, the member must negotiate fees and arrangements with the attorney directly. Further, by providing referrals the NRA is not endorsing or recommending any attorney on the list for any purpose—the attorneys on the list have asked to be placed on our list and are not systematically vetted by the NRA.


Supported Litigation: How the NRA Accepts Cases
The NRA cannot generally insert itself into litigation when it is not a party. For the NRA to “get involved,” we must be invited by a party or by the court. Please feel free to let us know about cases that may be of interest to the NRA, but do not contact us to “get involved” in cases to which you are not a party.


What Does It Cost?
NRA assistance, if any, is determined on a case-by-case basis.


How Does the NRA Choose Cases?
The NRA generally assists in cases that affect the Second Amendment civil liberties or civil rights of large numbers of people, 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?


Why the NRA Turns Down Some Cases
Unfortunately, there are many cases in which the NRA is simply unable to assist. We receive thousands of requests for help each year. We regret that we cannot provide assistance in many cases even if they fall within the guidelines discussed above.


Important Note About Deadlines
All legal claims have time deadlines. The 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 these 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 the NRA to describe your problem does not mean that the NRA represents you, and will not stop the statute of limitations from running. The NRA cannot give you advice about the deadlines that apply to your case. To protect your rights, please consult an attorney promptly to find out what deadlines may apply to your case.



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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.