by While the two lawsuits in Federal court against the California ban on mailorder sales of handgun ammunition were dismissed, the case in California Superior Court still continues. That case, Parker v. California, was brought by the California Rifle and Pistol Association Foundation with help from the NRA.
FINAL PRETRIAL BRIEFS FILED IN NRA / CRPAF
LAWSUIT CHALLENGING CALIFORNIA BAN
ON MAILORDER AMMO SALESOn January 7, 2011, the California Rifle and Pistol Association Foundation (CRPAF) filed a Reply brief and supporting materials for Plaintiffs’ Motion for Summary Judgment in their case challenging AB962. A trial is set for January 18, 2011 – just days before the portion of the law that bans mail order sales of “handgun ammunition” is set to take effect on February 1, 2011. The lawsuit, Parker v. California is funded exclusively by the NRA and the CRPA Foundation. It seeks a court order declaring the statutes enacted by AB 962 to be unconstitutional, and seeks injunctive relief prohibiting police from enforcing the new laws.
The lawsuit alleges that AB962 is unconstitutionally vague because it fails to provide sufficient notice of what ammunition is “principally for use in a handgun,” and thus is considered “handgun ammunition” that is regulated under AB 962. It is practically impossible, both for those subject to the law and for those who must enforce it, to determine whether any of the thousands of different types of ammunition cartridges that can be used in handguns are actually “principally for use in” or used more often in, a handgun. In fact, the legislature itself is well aware of the vagueness problem with AB 962 and attempted to fix it via AB 2358 in 2010. The attempt failed in the face of opposition from the NRA and CRPA.
Constitutional vagueness challenges to state laws are extremely difficult to win, particularly in California firearms litigation. While we are cautiously optimistic, ammo suppliers and sellers must also be ready to comply with the law if the court upholds it. A Compliance Guide is forthcoming, but unfortunately the law raises more questions than it answers, and the California Department of Justice Firearms Bureau is providing no assistance. Nonetheless, the Compliance Guide will include information obtained from DOJ through this litigation and much more, along with template forms which can be used by ammunition vendors. The Compliance guide will be released and distributed no later than January 18, 2010 on www.calgunlaws.comwww.michellawyers.com. Sign up at www.calgunlaws.com to be notified.
The Parker lawsuit is the only remaining court challenge to AB962. A federal judge last month dismissed two other cases (OOIDA v. Lindlley and State Ammunition v. Lindley) challenging AB 962 on other grounds. NRA was also a party to and sponsor of the OOIDA case.
Significantly, the Parker briefs argue that a heightened standard of certainty should be applied to the court’s vagueness analysis because of AB 962’s impact on the fundamental Second Amendment right to keep and bear arms. Generally, statutes are subjected to heightened scrutiny under the vagueness doctrine only where cases “impact,” “relate to,” or “implicate” constitutionally protected conduct. The Parker case presents a novel question of law that could set a precedent for future vagueness challenges because such heightened standards of legislative clarity have thus far only been applied in cases involving statutes impacting other constitutional rights such as freedom of speech, the right to choose to have an abortion, and the right to travel. Here however, it seems that blanket prohibitions on how “handgun ammunition” is purchased, and a thumb print requirement for every purchase of such ammunition, necessarily “implicates” or “relates to” the right to maintain an operable handgun to exercise the fundamental right to self defense. So in addition to the obvious benefit of AB 962 being declared unconstitutional, a ruling that statutes that impact Second Amendment rights deserve heightened Due Process court scrutiny would be helpful in the development of Second Amendment jurisprudence.
Win or lose, additional legislation on this and related subjects will no doubt be proposed in Sacramento this legislative session. It is absolutely critical that those who believe in the right to keep and bear arms stay informed and make their voices heard in Sacramento.
Seventeen years ago the NRA and CRPA joined forces to fight local gun bans being written and pushed in California by the gun ban lobby. Their coordinated efforts became the NRA/CRPA “Local Ordinance Project” (LOP) – a statewide campaign to fight ill conceived local efforts at gun control and educate politicians about available programs that are effective in reducing accidents and violence without infringing on the rights of law-abiding gun owners. The NRA/CRPA LOP has had tremendous success in beating back most of these anti-self-defense proposals.
In addition to fighting local gun bans, for decades the NRA has been litigating dozens of cases in California courts to promote the right to self-defense and the 2nd Amendment. In the post Heller and McDonald www.crpafoundation.org. All donations made to the CRPA Foundation will directly support litigation efforts to advance the rights of California gun owners.
Also, please register at www.CalGunLaws.com and www.crpa.org . www.CalGunLaws.com is produced by the law firm of Michel & Associates, P.C. as a pro bono effort to keep attorneys and interested firearm owners informed on the existing laws and latest legal developments in California. It includes a link to the highly effective www.calnra.com California legislative status and grassroots action page.
C.D. Michel
Senior Counsel
