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NRA-ILA Legal Update | January 2014

                                                        

Legal Update

 

                                                                                                       

JANUARY 2014

                                                     

               
Chicago's Firearm Transfer Ban Falls to Second Amendment Ruling

Things are looking up for gun owners in Illinois. On January 6, 2014, even as some 4,500 concealed carry applications flooded the state's online portal on its first full day of operation, Obama-appointed U.S. District Judge Edmond E. Chang of the Northern District of Illinois issued a significant opinion that invalidated Chicago's ban on firearm sales and transfers within the city. The suit was brought by the Illinois Association of Firearms Retailers and three individuals, with the backing of NRA.

The Chicago transfer ban was part of a series of ordinances the city hastily enacted after its total ban on handgun possession was invalidated by the Seventh Circuit Court of Appeals’ 2010 opinion in McDonald v. Chicago. Chicago's efforts to be the nation’s most oppressive jurisdiction for gun owners have yielded other important victories for the Second Amendment. These included the Seventh Circuit’s holding in 2011’s Ezell v. Chicago that Chicago’s ban on discharge (notwithstanding its requirement that residents obtain live-fire training as a condition of owning a gun in the city) was unconstitutional. Other aspects of the city's wide-ranging gun control regime have been whittled down in response to litigation and the broad preemption provisions of Illinois’ recently-enacted Firearm Concealed Carry Act (the result of yet another successful Second Amendment case in the Seventh Circuit, 2011’s Shepard v. Madigan). The transfer ban remained, however, a symbol of the same political denial and impudence that have ironically helped move the Second Amendment needle in the right direction through litigation time and again.                                

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Mixed Trial Court Ruling on New York’s "SAFE" Act Ensures Appellate Action Will Follow

On December 31, 2013, Judge William M. Skretny of the U.S. District Court for the Western District of New York issued a decisionin a legal challenge to New York’s recently-enacted gun control law, commonly known as the SAFE Act. The suit was brought by the New York State Rifle and Pistol Association, among others, with support from the NRA. Plaintiffs asserted that three provisions of the Act violated the Second Amendment. These included its expanded ban on so-called “assault weapons” and “large capacity ammunition feeding devices” and its requirement that magazines be loaded with no more than seven rounds, even if they have a larger capacity. Various aspects of the law were also challenged as being unconstitutionally vague. Finally, plaintiffs asserted that provisions of the law which effectively ban direct Internet or mail order sales of ammunition violate Congress’ preeminent role under the Constitution in regulating interstate commerce.                                

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Rights of Part-time New York Residents Affirmed

               

In a victory for gun owners who spend at least part of the year in the Empire State, on October 15, 2013, the New York State Court of Appeals issued an opinion in the case of Osterweil v. Bartlett that makes clear that part-time residents are eligible for New York handgun licenses.

               

The case arose when Alfred G. Osterweil, a resident of the town of Summit in Schoharie County, N.Y., submitted an application for a New York State pistol license in May of 2008. During the process, Osterweil alerted the Schoharie County Sheriff that he had purchased a home in Louisiana and intended to make that home his primary residence, while keeping another residence in Schoharie County. Unclear on how to proceed, the Schoharie County Sheriff queried Schoharie County Court Judge and licensing officer George R. Bartlett on the matter. Bartlett denied Osterweil’s pistol license application in May 2009.

               

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NRA Files Friend of the Court Brief in Case Challenging NSA’s Dragnet Data Collection

               

On September 4, 2013, NRA filed a brief in the U.S. District Court for the Southern District of New York in support of an American Civil Liberties Union suit against Director of National Intelligence James Clapper. The suit challenges the National Security Administration’s mass collection of communication data under Section 215 of the Patriot Act, on the grounds that the program is not authorized by that provision of law and violates Americans’ First and Fourth Amendment rights. The NRA brief focuses on arguments that NSA’s data collection program violates the First Amendment rights of NRA members by “potentially chilling their willingness to communicate,” and that the NSA program could circumvent statutory protections barring the federal government from collecting gun ownership records.

               

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Supreme Court Grants Cert in Abramski v. United States

               

On October 15, 2013, certiorari was granted by the United States Supreme Court in the case of Bruce J. Abramski v. United States, with oral arguments set for January 22, 2014. The case concerns whether BATFE’s policy barring the purchase of a firearm by a non-prohibited person for the purpose of selling it to another lawful purchaser exceeds the authority given to the agency under the Gun Control Act.

               

The case originated when Abramski, a former law enforcement officer, used a law enforcement discount to purchase a gun for his uncle. Abramski purchased the gun at a dealer then transported the gun to his uncle’s hometown. The pair then went to a local federally licensed firearms dealer, where Abramski transferred the gun to his uncle, after the uncle filled out a 4473 form and a submitted to a background check. Subsequently, the BATFE prosecuted Abramski for making a false statement on the 4473 during his initial purchase of the firearm, as he had responded affirmatively to a question asking whether he was the “actual buyer” of the gun.

               

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NRA Files Suit against Sunnyvale, Calif., Over Magazine Ban

               

On December 16,, 2013, counsel for NRA brought a suit against the city of Sunnyvale, Calif., to invalidate the city’s recently enacted ordinance banning standard-capacity firearm magazines. The complaint for declaratory and injunctive relief was filed with the U.S. District Court for the Northern District of California on behalf of several law-abiding gun owners, and argues that the new law violates the plaintiffs’ right to keep and bear arms as protected by the Second Amendment.

               

The offending ordinance was part of a package of gun controls that appeared as an inaccurately labeled “gun safety” ballot measure, for the city’s November 5, 2013, election. Residents were asked, “Shall the City of Sunnyvale adopt a gun safety ordinance to require: 1) reporting to police, within 48 hours, known loss or theft of a firearm; 2) storing firearms in residences in a locked container or disabling them with a trigger lock when not in the owner's immediate possession; 3) prohibiting the possession of ammunition magazines capable of holding more than 10 rounds, with certain exceptions; and 4) logging and tracking of ammunition sales within the City of Sunnyvale?” The measure passed, with two thirds voting in favor.

               

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Illinois State Rifle Association leads Fight against Highland Park Semi-Auto and Magazine Ban

               

On December 12, 2013, NRA state affiliate Illinois State Rifle Association filed suit against the city of Highland Park, Ill., to invalidate the Chicago suburb’s comprehensive ban on popular semi-auto firearms and their magazines. The ISRA’s complaint for declaratory judgment and injunctive relief, filed in the Circuit Court for the Nineteenth Judicial Circuit of Lake County, Ill., makes clear that Highland Park’s ban has “unconstitutionally infringed the fundamental right of law-abiding citizens under the Second Amendment of the United States Constitution to keep and bear arms for lawful purposes.”

               

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Mississippi Supreme Court Upholds Law Clarifying Carry Rules

               

On August 29, 2013, the Mississippi Supreme Court unanimously upheld a recently-enacted law that sought to restore the right to carry firearms openly within the state. Since an unfavorable decision in 1908, Mississippi’s ban on carrying a firearm that was concealed “in whole, or in part” was interpreted so strictly that one judge had opined that even the carrying a firearm by a leather string would violate the ban, as the string would obscure at least part of the firearm. Acccordingly, anyone lacking a Mississippi carry permit was unable to carry a pistol about his or her person without violating the law. Further, the law was interpreted so that any permit holder whose concealed firearm was partially revealed—while the person adjusted his or her clothes, for example—would run afoul of the law.

               

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Maryland Forced to Clarify Firearm Transfer Rules

               

Last June, an NRA-sponsored lawsuit helped provide some relief to beleaguered Maryland gun owners by forcing the Maryland Attorney General and State Police to clarify rules regarding the transfer of regulated firearms (handguns and some semi-automatic rifles and shotguns). At the time, Marylanders were faced with, in some cases, a 10-week wait for the State Police to process applications for regulated firearms. Firearm sales were especially brisk, given that the state had recently enacted an expansive gun control law that upon taking effect would result in further restrictions upon many regulated firearms. The suit forced the state to acknowledge that gun dealers could lawfully transfer a firearm to a prospective buyer after seven days, regardless of whether the State Police had responded to the dealer on the buyer’s background check.

               

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NRA-Supported Suit Prompts Maryland to Protect Gun Purchaser Privacy

               

In the wake of another NRA-sponsored lawsuit, the Maryland State Police on September 19, 2013, announced the termination of a program which shared sensitive personal information of firearms purchasers with state agencies and employees that were unauthorized to receive it. Joining NRA in the suit were the Maryland Licensed Firearm Dealers Association, Associated Gun Clubs of Baltimore, Maryland State Rifle and Pistol Association, and Maryland Shall Issue. The victory marked the second time in 2013 that Maryland authorities executed an abrupt about-face after the filing of an NRA-backed lawsuit aimed at protecting the “Free-State’s” gun owners.

               

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Case against Wilmington Housing Authority Moves to State Supreme Court

               

Last August, there was an encouraging development in NRA’s lengthy battle to ensure the rights of those living in public housing under the jurisdiction of the Wilmington Housing Authority (WHA). Rather than endorse a July 27, 2012, ruling by U.S. District Court for the District of Delaware Judge Leonard P. Stark, which upheld the housing authority’s gun policy, the U.S. Court of Appeals for the Third Circuit remanded the case to the Delaware Supreme Court, where Judge Stark’s finding could be reversed. Since the Third Circuit’s ruling moving the case to the Delaware Supreme Court, NRA and others have filed briefs outlining the illegality of the WHA’s actions.

               

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Wyoming Man has Conviction Overturned and Charges Dismissed in Self-defense Shooting

               

On December 20, 2013, Gabriel Drennen’s lengthy legal odyssey, following the self-defense killing of Leroy R. Hoster, came to an end when Fremont County, Wyo., District Court Judge Norman E. Young signed an order dismissing the remaining charges against him. The move followed an October 1st decision from the Wyoming Supreme Court that overturned Drennen’s initial conviction for first degree murder. Drennen’s case, supported by NRA, is important precedent in ensuring Wyomingites are able confidently to exercise their right to self-defense.

               

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Illinois Supreme Court Declares State's Ban on Carrying Firearms Unconstitutional

               

In an unusually forceful and straightforward opinion in the case of People v. Aguilar, the Supreme Court of Illinois unanimously held that the state's "comprehensive ban" on the "use of an operable firearm for self-defense outside the home" is invalid on its face under the Second Amendment. The NRA had participated in the case with an amicus brief.

               

The court surveyed the Supreme Court's recent Second Amendment decisions, as well as state and federal precedents from courts in Illinois. Regarding the significance of the Supreme Court's opinions, it declared: "neither Heller nor McDonald expressly limits the second amendment's protections to the home. On the contrary, both decisions contain language strongly suggesting if not outright confirming that the second amendment right to keep and bear arms extends beyond the home." It also characterized the Illinois law as "a wholesale statutory ban on the exercise of a personal right that is specifically named in and guaranteed by the United States Constitution…." According to the court, "In no other context would we permit this, and we will not permit it here either."

               

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Appellate Court Affirms Unconstitutionality of California Ammunition Controls

               

To follow up on an earlier NRA report, on November 6, 2013, California's Court of Appeals upheld a lower court decision invalidating a California law that threatened to limit access to, and compel recordkeeping for, ammunition sales.

               

The law, enacted as part of Assembly Bill No. 962, sought to impose onerous restrictions on the sale, delivery, and transfer of "handgun ammunition," with criminal penalties for noncompliance. With some exceptions, it banned mail-order sales by requiring that the delivery or transfer take place through face-to-face transactions, with "bona fide evidence of identity" from the purchaser. The purchaser also had to provide the vendor with a date of birth, address, telephone number, driver's license number, signature, and a right thumbprint. This information, along with the brand, type, and amount of ammunition sold, and the salesperson's name, would have to be maintained as a record by the vendor for five years.

               

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Your State Gun Laws at a Glance Tell Us What You Think
               

               

Referrals
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.

           
               

               

CLICK HERE to submit any questions, comments, or suggestions for topics you would like see addressed on the NRA-ILA Legal Update. Please do not submit requests for legal assistance; those should be sent instead to ILAlegal@nrahq.org

           
NRA ILA

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.