by Morris et al v. US Army Corps of Engineers is a case brought in US District Court for the District of Idaho by the Mountain States Legal Foundation that sought to enjoin the Corps from prohibiting firearms on Corps-administered lands. The case was brought in August 2013 on behalf of Elizabeth Morris and Alan Baker who wanted to have functional firearms for self-defense while camping, hiking, and boating on Corps-administered lakes in Idaho. On Friday, Chief Judge B. Lynn Winmill issued a preliminary injunction against the Corps and in favor of the plaintiffs’ request to have functional firearms on Corps-administered property.
The argument before the court was whether Corps regulations that prohibited a loaded, functional firearm unless hunting or at a target range violated the Second Amendment. To evaluate this, Judge Winmill used the two-step analysis established in the recent 9th Circuit decision in US v Chovan. First, the court had to determine whether “the challenged law burdens conduct protected by the Second Amendment.” The second step was to determine the appropriate level of scrutiny.
The plaintiffs had argued that a tent is a temporary residence and should be entitled to the same protections one would have in a more permanent dwelling. Noting that the Supreme Court in Heller had held that the home is the place where the need for self-defense is most acute, Judge Winmill agreed with the plaintiffs that a tent is a temporary residence entitled to the same protections.
The same analysis applies to a tent. While often temporary, a tent is more
importantly a place – just like a home – where a person withdraws from public view, and seeks privacy and security for himself and perhaps also for his family and/or his property.
Indeed, a typical home at the time the Second Amendment was passed was cramped and
drafty with a dirt floor – more akin to a large tent than a modern home. Americans in
1791 – the year the Second Amendment was ratified – were probably more apt to see a
tent as a home than we are today. Heller, 554 U.S. at 605 (holding that “public
understanding” at time of ratification is “critical tool of constitutional interpretation”).
Moreover, under Fourth Amendment analysis, “tents are protected . . . like a more
permanent structure,” and are deemed to be “more like a house than a car.” U.S. v.
Gooch, 6 F.3d 673 (9th Cir. 1993). The privacy concerns of the Fourth Amendment carry
over well into the Second Amendment’s security concerns.
The regulation at issue would ban firearms and ammunition in a tent on the Corps’
sites. This ban poses a substantial burden on a core Second Amendment right and is
therefore subject to strict scrutiny.
Judge Winmill then took up the issue of whether the ban on functional firearms in other places by the Corps violated the Second Amendment and, if so, what was the burden to the plaintiffs. He starts out by stating that the Supreme Court in Heller held that carry outside the home for self-defense was protected by the Second Amendment. Looking to see how other courts had dealt with this issue, he examined the 4th Circuit’s decision in US v Masciandaro and the 7th Circuit’s decision in Moore v. Madigan (and by inference, Shepard v. Madigan).
In Masciandaro, the 4th Circuit concluded that the National Park’s regulation struck a balance between public safety and self-defense and thus was permitted. By contrast, in Moore, the 7th Circuit concluded that the Illinois law was so restrictive that a balance couldn’t be struck and thus was unconstitutional.
The ban imposed by the Corps places this case closer to Moore than Masciandaro.
The Corps’ regulation contains a flat ban on carrying a firearm for self-defense purposes.
By completely ignoring the right of self-defense, the regulation cannot be saved by the
line of cases, like Masciandaro, that upheld gun restrictions accommodating the right of
self-defense.
As to scrutiny, Judge Winmill said it was unnecessary for the court to decide because the regulation failed even at intermediate scrutiny. He said the regulation designed to protect both infrastructure and the public was just too broad and could not satisfy the “reasonable fit” test. The Corps had argued that its regulations should be evaluated under a rational basis test given the 9th Circuit’s decision in Nordyke. The judge disagreed because Nordyke never discussed self-defense.
Finally, the court looked at the plaintiffs’ request for an injunction and whether it was as the Corps argued a mandatory injunction. The judge said since the plaintiffs only request a non-enforcement of a ban and did not require an affirmative action on the part of the Corps, it was not a mandatory injunction and merely a prohibitory injunction. After examining whether the plaintiffs met the standards for granting a preliminary injunction, Judge Winmill wrote:
From the discussion above concerning the motion to dismiss, it is apparent that
plaintiffs have shown a very strong likelihood of success on the merits. Moreover,
irreparable harm is likely because the plaintiffs have made out a colorable claim that their
Second Amendment rights have been threatened. See Sanders County Republican Cent.
Committee v. Bullock, 698 F.3d 741, 744 (9th Cir. 2012) (holding that colorable claim of
constitutional violation satisfies irreparable harm element). This threat tips the balance of
equities in favor of plaintiffs because the harms complained of by the Corps could be
“addressed by a more closely tailored regulatory measure[].” Ezell, 651 F.3d at 710. For
the same reasons, an injunction would be in the public interest.
Accordingly, the Court will grant the injunction requested by plaintiffs enjoining
the Corps from enforcing 36 C.F.R. § 327.13 as to law-abiding individuals possessing
functional firearms on Corps-administered public lands for the purpose of self-defense.
Two things need to be noted here. First, this is an preliminary injunction and the Corps is entitled to an evidentiary hearing that could overturn the injunction. The second points out just how critical it is to get a body of earlier decisions affirming the Second Amendment. In this case, the judge looked at not only Heller but such cases as Ezell, Nordyke, and Moore v. Madigan to name just a few. Having this body of case law is critical for wins in future cases.
The full memorandum and order can be read here.
Good news.. so far!