Shepard V. Madigan – A Loss In District Court

US District Court Judge William D. Stiehl granted the State of Illinois’s Motion to Dismiss yesterday in the NRA-ISRA challenge to Illinois carry laws. The case, Shepard v. Madigan, was brought in US District Court for the Southern District of Illinois. Judge Stiehl granted the state’s motion to “dismiss pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim”. At the same time he denied the plaintiffs’ motions.

The NRA has indicated that they will appeal the ruling:

“Late today, a federal district court in Illinois wrongly ruled that the Second Amendment does not protect a right to carry firearms for self-protection outside the home. The NRA funded this challenge to Illinois’ ban on citizens’ ability to carry firearms legally outside their homes and businesses for self-defense, and will also be supporting an immediate appeal to the Seventh Circuit U.S. Court of Appeals–and to the Supreme Court if necessary.

The decision in the case of Shepard v. Madigan misreads the Supreme Court’s Second Amendment decisions and will continue to deprive law-abiding Illinoisans of the right to protect themselves effectively against crime on the streets.  It also conflicts with a growing body of case law elsewhere in the country, where courts have increasingly recognized that the right to bear arms for self-defense doesn’t end at Americans’ front doors.

“The NRA’s legal efforts will not end until the right to carry firearms for self-defense is fully recognized throughout our land,” said NRA-ILA Executive Director Chris W. Cox.

Judge Stiehl found that intermediate scrutiny was the appropriate standard of scrutiny in this case. He then pointed to the 4th Circuit’s ruling in Masciandaro. However, unlike the judges in Woollard and Bateman, he read it differently, saying:

The defendants assert that the State of Illinois has significant governmental interests in protecting the safety of the public by restricting the availability and use of handguns in public. The Supreme Court has previously recognized that under intermediate scrutiny cases, the government’s interest need not be compelling. Schenck v. Pro-Choice Network, 519 U.S. 357, 376 (1997). As the Fourth Circuit noted in United States v. Masciandaro, 638 F.3d 458, 473 (4th Cir. 2011), “[l]oaded firearms are surely more dangerous than unloaded firearms, as they could fire accidentally or be fired before a potential victim has the opportunity to flee.” The State of Illinois has determined that, for purposes of protection of its residents, a citizen’s interest in carrying a firearm in public should be subject to the governmental interest in safeguarding the welfare of the public at large from the inherent dangers in a loaded firearm. This Court FINDS that the state has, therefore, established a substantial interest in the regulations at issue.

It seems to me that Judge Stiehl was grasping for straws in this decision. It will be interesting to see what the 7th Circuit makes of his logic. 

The full opinion can be found here.

UPDATE: Prof. Eugene Volokh of UCLA Law and the Volokh Conspiracy examined the decision yesterday. He offers the opinion that Judge Stiehl misreads the 7th Circuit’s Ezell opinion regarding intermediate scrutiny.

I’m not claiming that Ezell clearly selected “a more rigorous” standard than intermediate scrutiny for law-abiding-citizen Second Amendment claims — it may be that its selection of that standard is limited to restrictions that interfere with gun possession in the home. (The Ezell plaintiffs “claim[ed] that the range ban impermissibly burdens the core Second Amendment right to possess firearms at home for protection because the Ordinance conditions lawful possession on range training but makes it impossible to satisfy this condition anywhere in the city.”) But I am saying that Ezell did not select “intermediate scrutiny” as the general standard for law-abiding citizen Second Amendment claims outside the home, and the district court was mistaken in concluding that Ezell did so. Rather, the district court should have recognized that the issue had not been decided by the Seventh Circuit, and the court should have accepted the responsibility for itself making the choice, rather than asserting that the choice was made for it.

Four Wins In A Month!

Heads must be spinning at the Brady Campaign’s headquarters with news that the Second Amendment Foundation just won its fourth Second Amendment case this month. The latest case is from Massachusetts where U.S. District Court Judge Douglas P. Woodcock found that the commonwealth’s ban on handgun possession by permanent resident aliens contravened the Second Amendment.

From the Second Amendment Foundation’s announcement of their win in Fletcher v. Haas:


For Immediate Release: 3/30/2012

BELLEVUE, WA – A Federal District Court Judge in Massachusetts today granted summary judgment in a Second Amendment Foundation case challenging that state’s denial of firearms licenses to permanent resident aliens.

U.S. District Court Judge Douglas P. Woodcock concluded that “…the Massachusetts firearms regulatory regime as applied to the individual plaintiffs, contravenes the Second Amendment.”

The case involves two Massachusetts residents, Christopher Fletcher and Eoin Pryal, whose applications for licenses to possess firearms in their homes for immediate self-defense purposes were denied under a state law that does not allow non-citizens to own handguns. SAF was joined in the case by Commonwealth Second Amendment, Inc. and the two individual plaintiffs. The case is Fletcher v. Haas.

“This is our fourth court victory this month in our campaign to win back firearms freedoms one lawsuit at a time,” said SAF founder and Executive Vice President Alan Gottlieb. “It is one more step toward repairing decades of Second Amendment erosion.”

In his 41-page ruling, Judge Woodcock wrote, “The Massachusetts firearms regulatory regime, as applied to Fletcher and Pryal, does not pass constitutional muster regardless of whether intermediate scrutiny or strict scrutiny applies…The possibility that some resident aliens are unsuited to possess a handgun does not justify a wholesale ban.”

“With each strategic victory over a specific statute,” Gottlieb said, “SAF and its fellow plaintiffs are advancing the line a little more. Since our landmark victory in the McDonald case that incorporated the Second Amendment to the states, we’ve been carefully picking laws to challenge, chipping away at years of gun control extremism. So far this month, we have posted victories in Maryland, North Carolina, Washington and now, Massachusetts.

“Our battle is hardly finished,” Gottlieb concluded. “We’ve got to roll back generations of onerous gun laws. It’s going to be a long march, and these wins are just the first small steps.”

Will Bateman Be Appealed?

Yesterday after the ruling in Bateman et al v. Perdue et al was released, I reached out to the public information officers for Gov. Beverly Perdue (D-NC) and the North Carolina Attorney General’s Office for their response. Specifically, I asked if they planned to appeal the ruling and if they had any comment on the ruling. I was fortunate to get responses from both offices.

From Noelle Talley, Public Information Officer, NC Department of Justice:

Attorneys with our office are currently reviewing the judge’s ruling. No decision has been made yet on an appeal.

Meanwhile, Mark Johnson of Gov. Perdue’s office had this to say:

Governor Perdue’s executive orders already address this issue – and will in the future – by including the following language:

This order is adopted pursuant to my powers under Article 1 of Chapter 166A of the General Statutes and under Article 36A of Chapter 14 of the General Statutes. It does not trigger the limitations on weapons in G.S. § 14-288.7 or impose any limitation on the consumption, transportation, sale or purchase of alcoholic beverages.

The legislature would have to make any change in the statute.

If one goes by what the Attorney General’s Office says, there remains some possibility of an appeal. However, my reading of the response from Gov. Perdue’s office seems to indicate that they don’t plan any appeal. My feeling is that it won’t be appealed.

After the heat that Perdue took over earlier Executive Orders declaring states of emergency, she has started to include the language stated above in her Executive Orders. Unfortunately, until Judge Malcolm Howard found them unconstitutional, any declaration of a state of emergency under Article 36A of Chapter 14 of the NC General Statutes did trigger the firearms prohibitions regardless of what modifying language the governor put in them. While she may have thought she addressed that issue, she did not as there was never a provision to exempt the gun bans on the governor’s say-so.

World’s Only Night Time 3 Gun Match

Iain Harrison sent out a notice this afternoon about an event that Crimson Trace will be sponsoring this summer – the Midnight 3 Gun Invitational. What is not to like about this event – full-auto weapons, thermal imaging, and night vision gear. I hope they provide some good video of this event.

From their release:

(Wilsonville, OR) Crimson Trace today announced the most unusual shooting event on the 2012 match calendar – a fast-paced 3-gun match shot entirely at night in the high desert, near Bend, OR. The event will occur after sunset, July 16-18 and the organizers will be providing full-auto firearms, thermal imaging equipment and state of the art night vision gear to all the competitors on several of the eight challenging stages.

Many of the country’s top 3 gun competitors have already signed up for the match, citing the additional challenge of competing in darkness as a big factor. “All the top guys have years of experience running & gunning in daytime conditions, but there are very few who’ve competed at this kind of level at night,” said Iain Harrison, media relations manager for Crimson Trace, and 3-gunner himself. “It’s going to be fascinating to see who comes out on top, and with what equipment.”

The match was scheduled for a week when there will be little to no moonlight, forcing the competitors to rely heavily on whatever weapon-mounted lights and lasers they feel will offer the best advantage, and the match rules have been written to favor innovation and adaptability. “We deliberately didn’t write a restrictive rulebook for this match – if the shooter decides that their rifle would benefit from an aircraft landing light powered by a portable generator, then they can go ahead and bolt one up. Though I suspect they’d be better served with one of our MVF-515™ vertical foregrips,” joked Harrison.

Many of the leading outdoor-related companies based in the area have thrown their weight behind the event. Sponsors include Nike, Leatherman, Danner, PWS, Blade-Tech and Warne, in addition to Crimson Trace, giving the match a distinctly Pacific Northwest flavor. CTC is offering a $3000 check to the eventual winner, doubling that amount if their products are used on all three of the competitor’s guns. With a sizeable media contingent showing up to both shoot in and cover the match, anyone who can’t make it out to central Oregon should be able to follow their favorite athlete’s progress as the event unfolds.

That Other O’Reilly

Rep. Darrel Issa (R-CA) and Sen. Chuck Grassley (R-IA) want to hear what O’Reilly has to say. Not Bill O’Reilly who has the show called The O’Reilly Factor but White House staffer Kevin O’Reilly. This was the person with whom Bill Newell, former SAC of the ATF’s Phoenix Field Division, had back channel communications regarding Operation Fast and Furious. Conveniently enough, Kevin O’Reilly moved to the State Department and is now in Iraq on assignment.

Yesterday Rep. Issa and Sen. Grassley sent a letter to Kathryn Ruemmler, Counsel to the President, requesting that Mr. O’Reilly be allowed to testify. They note that Mr. O’Reilly’s personal attorney is willing to let him testify if it is allowed by the White House. Moreover, in a break from normal procedures, they are willing to let him testify by phone from Iraq.

What they want Mr. O’Reilly to testify about is the nature of the back channel communications between himself and Bill Newell.

To this day, Newell has failed to disown Fast and Furious or admit the flawed nature of the program. This failure has raised new questions. Was Newell looking for authorization outside of his chain-of-command in order to continue this deadly program? What did O’Reilly know about the objectives and tactics used in Fast and Furious and with whom did he share his knowledge? These answers are gemane to the Committee’s investigation. O’Reilly is the only person capable of supply accurate answers to them.

Of course, as Dave Workman points out, the White House is denying that they knew anything about gun walking. Eric Schultz, the Associate Communications Director, had this to say to FoxNews:

“White House Counsel is reviewing the letter and will respond as appropriate. But broadly speaking, while some personnel in the White House were made aware of ATF’s efforts to combat gun trafficking along the southwest border, including Operation Fast and Furious, there has been no evidence to suggest that anyone at the White House knew about any decision to allow guns to ‘walk’ to Mexico.”

Schultz is the White House staffer or, as I would call him, the punk, who thought his position gave him the right to berate and curse CBS News investigative reporter Sharyl Attkisson over her coverage of Project Gunwalker. We have come to find out this is standard operating procedure in the Obama White House when they are seeking to kill a story.

Sen. Grassley was interviewed by Jon Scott of FoxNews about his letter and his efforts to get testimony from Mr. O’Reilly. Sen. Grassley says that they have one side of the story from ATF SAC Bill Newell and they need the other side of the story from Kevin O’Reilly. He also said that they were being stonewalled by the White House and that this continual stonewalling leads one to look guilty of something. He has a point there – if the White House has nothing to hide then they should make Kevin O’Reilly available for telephonic testimony before the House Oversight and Government Reform Committee. I’m guessing it isn’t going to happen.

Grass Roots North Carolina On Their Win In The Bateman Case

Grass Roots North Carolina, the other organizational plaintiff in Bateman et al v. Perdue et al, released a statement this afternoon on the decision. The statement notes that it helps to extend the right to keep and bear arms outside the home. They also note that their attorney Alan Gura has extended his string of victories in Second Amendment cases.

Grass Roots North Carolina & Second Amendment Foundation expand gun rights

Lawyer Alan Gura extends string of Second Amendment wins

CHARLOTTE, N.C., March 29, 2012 /PRNewswire-USNewswire/ — Writing for the U.S. District Court for the Eastern District of North Carolina, Senior U.S. District Judge Malcolm J. Howard today added another to the growing list of gun laws struck down on Second Amendment grounds.

State of Emergency Gun Ban

In Bateman et al. v. Perdue et al., at issue was the state’s blanket prohibition on carrying firearms outside the home during declared states of emergency. During numerous states of emergency involving hurricanes and other phenomena, lawful North Carolinians have been prevented from protecting themselves outside the home, including an incident in which King, NC posted the entire town against firearms in anticipation of a snowstorm. Plaintiffs for the case were gun rights organizations Grass Roots North Carolina, the Second Amendment Foundation, and citizens Michael Bateman, Virgil Green and Forrest Minges, Jr.

Second Amendment Scholarship

The Bateman decision further extends the right to bear arms outside the home. Extensively cited in the decision were the recent Supreme Court decision affirming an individual right to keep and bear arms in D.C. v. Heller, the “incorporation” of the Second Amendment in Mc Donald v. Chicago, and recent Fourth Circuit decisions in U.S. v. Chester and U.S. v. Masciandaro.

From the decision:

Citing from Masciandaro: “…the Second Amendment right to keep and bear arms ‘is not strictly limited to the home environment but extends in some form to wherever those activities or needs occur.'”

“It cannot be seriously questioned that the emergency declaration laws at issue here burden conduct protected by the Second Amendment…”

“…the statutes here excessively intrude upon plaintiffs’ Second Amendment rights by effectively banning them (and the public at large) from engaging in conduct that is at the very core of the Second Amendment at a time when the need for self-defense may be at its very greatest.”

In addition to the Heller and McDonald victories, attorney Alan Gura recently won a victory against Maryland’s restrictive handgun permit law in Woollard et al. v. Sheridan et al.

The Second Amendment Foundation On The Bateman Win

The Second Amendment Foundation, an organizational plaintiff in Bateman v. Perdue, released this concerning the win today. There were those who had suggested that we go through the NC General Assembly to get the Emergency Powers ban changed. Many of us in North Carolina as well as Grass Roots NC and the Second Amendment Foundation opposed that move while this case was still active. I think the judgment of SAF, GRNC, and those who felt it was important to wait for this victory was vindicated with Judge Howard’s decision.


For Immediate Release: 3/29/2012

BELLEVUE, WA – A federal district court judge in North Carolina has just struck down that state’s emergency power to impose a ban on firearms and ammunition outside the home during a declared emergency, ruling that the provision violates the Second Amendment right to keep and bear arms.

The case, Bateman v. Purdue, was brought by the Second Amendment Foundation, Grass Roots North Carolina FFE and three individual plaintiffs. Defendants in the case were Gov. Beverly Purdue and Reuben F. Young, secretary of the state’s Department of Crime Control and Public Safety, in their official capacities.

In his opinion, Judge Malcolm J. Howard, senior United States district judge for the Eastern District of North Carolina, wrote, “…the court finds that the statutes at issue here are subject to strict scrutiny…While the bans imposed pursuant to these statutes may be limited in duration, it cannot be overlooked that the statutes strip peaceable, law abiding citizens of the right to arm themselves in defense of hearth and home, striking at the very core of the Second Amendment.”

“When SAF attorney Alan Gura won the Heller case at the Supreme Court,” noted SAF Executive Vice President Alan M. Gottlieb, “the gun ban crowd said that we were a ‘one-trick-pony’ and that we would never knock out another gun law. Well, SAF has now knocked out gun laws in Maryland, Illinois and North Carolina.

“We filed this lawsuit on the day we won the McDonald case against Chicago,” he added, “extending the Second Amendment to all 50 states. This was part of our strategy of winning firearms freedoms one lawsuit at a time.”

Gottlieb pointed to language in Judge Howard’s ruling that solidifies the Second Amendment’s reach outside the home. The judge noted that the Supreme Court in Heller noted that the right to keep and bear arms “was valued not only for preserving the militia, but ‘more important(ly) for self-defense and hunting.”

“Therefore,” Judge Malcolm wrote, “the Second Amendment right to keep and bear arms ‘is not strictly limited to the home environment but extends in some form to wherever those activities or needs occur.”

“Under the laws at issue here, citizens are prohibited from engaging, outside their home, in any activities secured by the Second Amendment,” Judge Malcolm wrote. They may not carry defensive weapons outside the home, hunt or engage in firearm related sporting activities. Additionally, although the statutes do not directly regulate the possession of firearms within the home, they effectively prohibit law abiding citizens from purchasing and transporting to their homes firearms and ammunition needed for self-defense. As such, these laws burden conduct protected by the Second Amendment.”

Bateman Is Another Win For Alan Gura

Bateman et al v. Perdue et al was the first Second Amendment case after the win in McDonald. It challenged North Carolina’s Emergency Powers statutues. These statutes when invoked by either the Governor or local government officials banned the off-premises carry of firearms and ammunition during a declared state of emergency.

The case has been in the U.S. District Court for the Eastern District of North Carolina since June 2010 and today we have a decision.

From the order by Judge Malcom J. Howard:

IT IS ORDERED, ADJUDGED AND DECREED that the court GRANTS plaintiffs’ motion for summary judgment and hereby DECLARES N.C. Gen.Stat §§ 14-288.7. 14-288.12(b), 14-288.13(b), 14-288.14(a) and 14-288.15(d)unconstitutional as applied to plaintiffs. The court DENIES defendants’ motion to dismiss or, in the alternative for summary judgment.

In other words, a complete win!

I am in the process of reading Judge Howard’s decision and will, of course, have a full summary as soon as possible.

As a North Carolinian, I want to thank Alan Gura and the Second Amendment Foundation for believing in us enough to make this the first post-McDonald case.