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Supplemental Briefing is Ordered in Nordyke Case

July 20, 2010 by

On Monday, the Ninth Circuit Court of Appeals ordered supplemental briefs from the attorneys for both sides in the Nordyke case. They also will accept amicus briefs in support of either party.

The parties were ordered to submit briefs of no longer than 15 pages addressing:

(1) the impact of McDonald v. City of Chicago, No. 08-1521, 2010 WL 2555188 (U.S. June 28, 2010), on the disposition of this case; and
(2) any other issue properly before this court, including the level of scrutiny that should be applied to the ordinance in question.

Eugene Volokh of the Volokh Conspiracy noted that:

The express mention of the level of scrutiny suggests that the panel might be willing to reconsider the issue. My guess is still that the panel will largely say what it said before, or perhaps reach much the same result but instead relying on cases such as Webster v. Reproductive Health Servs. (1989), which held that the right to abortion did not include the right to perform abortions in a state-owned hospital (even if the abortions imposed no extra cost on the hospital). But its most recent order makes that far more clear, and a victory for the gun show organizers more likely (though I think on balance still not very likely).

The Court denied the motion for a supplemental briefing by Nordyke as moot. I discussed that brief request here. Despite denying the motion, one must wonder if it spurred them to issue the order for a supplemental briefing.

You can read the full order below:

Nordyke v. King – Order for Supplemental Briefing

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A Reason Not to Slam the Door When Angry

July 20, 2010 by

The Volokh Conspiracy is reporting on a New Jersey case where an applicant was denied a license to keep a firearm in the home because “his ex-wife says he ‘became angry at times, slammed doors with force and caused damage,’ which made her fear him.” The applicant, it should be noted, had never been charged with either a misdemeanor or felony charge of domestic violence.

Read the whole discussion here. It makes for very interesting – though troubling – reading.

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Montana State Shooting Association v. Holder – Hearing

July 20, 2010 by

Oleg Volk’s The High Road board posted this email from Gary Marbut, the President of the Montana Shooting Sports Association. MSSA and Marbut had sued the Federal government over the Montana Firearm Freedom Act.

Sender: Gary Marbut-MSSA
Subject: Report – Oral argument; MSSA v Holder US Motion to Dismiss
Date: Thu, 15 Jul 2010 21:55:17 -0600
To:

Dear MSSA Friends,

Oral argument was held today on the U.S. Motion to Dismiss MSSA v. Holder, our lawsuit to validate the principles of the Montana Firearms Freedom Act.

The hearing took place in the U.S. Courthouse at the corner of Broadway and Pattee in Missoula, beginning at 9:00 AM, and finished shortly after 11:00 AM.

The U.S. moved to dismiss the lawsuit (standard, boilerplate move) based on standing, jurisdiction, and merit.

Concerning standing, the U.S. argues that I, as the sole individual plaintiff, don’t face imminent injury to allow me to obtain judicial relief because there is no certainty that the BATFE will arrest me and the U.S. will prosecute me if I forge ahead with plans to make MFFA items without federal permission (licensure).

About jurisdiction, the feds say the U.S. is sovereign and cannot be sued, except under the provisions of the Administrative Procedures Act which allows suit to clarify rights and responsibilities only after “final agency action.” The U.S. says that the BATFE letter to me advising me that I will be prosecuted if I make any MFFA items for resale is not final agency action, although the U.S. cannot say what other position the BATFE could take to grant me any relief beyond what it already has done (threaten me with prosecution if I make MFFA-protected items).

About merit, the U.S. says that precedent is against the MFFA concept, our side is bound to lose, so the court might as well just dismiss the lawsuit now.

In this hearing, the U.S. was represented by Jessica Leinwand, a young Department of Justice attorney from D.C. Jessica seemed bright, competent, well prepared, but only knowledgeable in a bookish way. That is, she seemed quick with and knowledgeable about case citations that supported her side of the argument, but she did not mount or support any philosophically-based arguments. Although Jessica’s arguments seemed to be competently mounted, they also seemed to lack any touch of passion or personal vestment. One may suppose it’s difficult to wax passionate about arguing the federal government position.

For a young attorney with limited experience to travel half way across the country to a strange place and stand in opposition to a half-dozen other experienced attorneys must be a nervous-making, intimidating experience. However nervous, Jessica did not let it show and did a good job of focusing on business at hand.

There were a whole string of attorneys representing our side of this contest. Lead attorney for Plaintiffs (MSSA, SAF, and me) was Quentin Rhoades, a partner with the Missoula firm of Sullivan, Tabaracci and Rhoades. Quentin has been lead counsel for Plaintiffs on this case since the inception, and has done other litigation for MSSA. Quentin was accompanied by ST&R attorney Rob Erickson, although Rob did not argue.

Plaintiffs had arranged in advance to give some of our argument time to two other attorneys representing amici parties to the lawsuit. One is Nick Dranias of the Goldwater Institute in Arizona. Montana federal court rules require that attorneys from out of state must associate with and be “sponsored by” a Montana attorney in order to appear in federal court in Montana. Nick was sponsored by attorney Tim Fox of Helena, recent candidate for Montana Attorney General.

The other amicus to whom Plaintiffs ceded some argument time was Virginian attorney Herb Titus, who represents Gun Owners of America and Gun Owners Foundation. Herb was sponsored in Montana by attorney Greg Jackson of Helena.

The Attorney General of Montana has intervened in this lawsuit to defend the constitutionality of a statute enacted by the Montana Legislature and was given oral argument time separate from that given to Plaintiffs and Defendant U.S. The Montana AG was represented by attorney Chris Tweeten from the Montana Department of Justice in Helena.

The AG was persuaded to cede some of his allocated oral argument time to Professor Jeff Renz of the U. of M. School of Law, who argued for another amicus group of Montana legislators.

Forward of the bar in the courtroom were the judge – Magistrate Judge Jeremiah Lynch, the court secretary, the judge’s two law clerks, Quentin, me, Jessica (and Jessica’s unnamed assistant), Tim, Nick, Greg, Herb, Chris and Jeff. There were about 40 people in the audience, including MSSA Board Member and State Representative Cary Smith from Billings, State Senator Jim Shockley from Victor, Idaho Representative Dick Harwood who sponsored the Idaho Firearms Freedom Act, a delegate from Congressman Denny Rehberg’s office and interesting others.

The order of presentation was this:

Magistrate Lynch introduced the case.

Quentin explained time ceded to Nick and Herb and introduced the Montana sponsors for each who introduced Nick and Herb to the court.

Chris introduced himself and introduced Jeff.

Then the hearing began.

Jessica went first for 35 minutes (all times approximate), and reserved 15 minutes for rebuttal at the end.

Quentin went next for 20 minutes, then Nick for 10 minutes, and Herb for another 10 minutes.

Following those, Chris argued for 15 minutes, and finally Jeff for 10 minutes.

Last, Jessica used her reserved 15 minutes for rebuttal/closing.

I will not attempt to cover all of the arguments made or questions asked by Magistrate Lynch. There was not a lot of new material that was not already in briefs provided by various parties, all of which is available from the FFA Website.

Although all attorneys involved (including Jessica) did a great job, Jeff carved out for himself the role of a cleanup batter. He used his final ten minutes primarily to address issues left in play by questions from Magistrate Lynch. In jumping into that cleanup role, I thought Jeff did an especially helpful job.

I have asked ALL others present (including audience members) to offer personal comment about the hearing today, and I will post those comments Online when available and send you a link. This location will also offer digital pics of all the folks involved (outside the Courthouse).

I will say that I thought we had a powerful presentation by those on our side (i.e., everyone but Jessica). Our net argument was that the lawsuit should not be dismissed, but should go to trial for development of relevant facts. There are far too many legal issues and subtleties at work to attempt to brief you on all of them here. However, if an entirely neutral judge were presented with all the briefs submitted and arguments heard today, I believe he’d let the matter go to trial. Of course, I’m not prejudiced.

Whether or not that will actually happen remains to be seen. Quentin thinks we may have a decision within two weeks, but I don’t think anyone really knows for sure.

No matter, the game is now engaged – we are on the field. We are in play with MSSA v. Holder and at the wave front of a tsunami of interest in states rights sweeping the U.S.

Best wishes,

Gary Marbut, president
Montana Shooting Sports Association
http://www.mtssa.org
author, Gun Laws of Montana
http://www.mtpublish.com

Another commenter, who goes by Proficient Rifleman, was in the courtroom as an observer and had this to say:

I was in the courtroom and can tell you that Quintin Rhoades did a very good job in his oral arguments. He presented the case that Mr. Gary Marbut and the Montana Shooting Sports Association are suffering harm by NOT being able to produce firearms under the MFFA, due to legitimate threat of prosecution by the Federal Government.

The attorney for the Goldwater Institute did a very good job also, as did the attorney for Gun Owners of America and Gun Owners Foundation. A representative for the Montana Attorney General’s Office also made a brief statement on behalf of Montana and the MFFA.

The Federal Government’s attorney made the case that Marbut and MSSA had no standing, since he has not produced a single firearm, has not lost any business from his non-production, and currently is not being prosecuted for violating the Gun Control Act. The Government also argued that Federal regulatory authority extends to purely intra-state activities pretty much anytime congress decides it should.

Marbut’s argument, and that of all the amici, though coming from slightly different directions, was that the threat of prosecution was enough to chill commerce. That the Federal Government does have the authority to regulate interstate commerce, but not intra-state (limited by the 10th amendment), and that various precedents may not apply since McDonald was decided.

Overall it was a good way to spend the morning.

Oral argument transcripts will be available soon.

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Shall Not Be Infringed

July 20, 2010 by

Professor Eugene Volokh of the Volokh Conspiracy blog, in response to a reader who says “The standard of review should be ‘SHALL NOT BE INFRINGED’”, has an interesting discussion on what the courts have said constitutes “infringement” as opposed to “reasonable regulation.”

Historically, the answer courts have generally given is that “reasonable regulations” of the right to bear arms aren’t infringements, while “prohibitions” are infringements. That of course just pushes the problem back to the question of what’s a reasonable regulation and what’s a prohibition (or an unreasonable regulation); and I think the courts have sometimes found gun restrictions to be “reasonable regulations” when they should have struck down the restrictions as excessively burdening — and therefore infringing — the right.

The question came up with regard to the Nordyke case. Is the government controlling access to government property an infringement or a reasonable regulation? Volokh thinks most courts will tend to say that the government can restrict access to government property and will classify it a reasonable regulation.

In general, with regard to gun rights, Volokh says:

But in any event, it seems unlikely that courts will take an absolutist view towards the right to bear arms, to the point that any regulation of any possession of any arms in any place will be seen as an “infringement.”

He ends by pointing readers to a 2009 article he wrote on the Second Amendment for the UCLA Law Review. The article is comprehensive (107 pages!).

I would also suggest reading the comments in the blog post as you have comments from Seond Amendment scholars such as Dave Hardy and David Young.

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Nevada State Parks Sued Over Gun Restrictions

July 19, 2010 by

In what by my count is the fifth post-McDonald complaint to be filed in Federal court, the Mountain States Legal Foundation filed a lawsuit in the US District Court for Nevada, Northern Division, last week over firearm restrictions in Nevada State Parks.

According to a story in the Las Vegas Sun, 

Nevada code bans possession of a firearm in state parks unless the firearm is unloaded and inside a vehicle, or the gun owner is carrying the weapon in conformity with a state concealed weapons permit, or the gun owner is hunting in an authorized area.

The plaintiff in the lawsuit is Al Baker, a resident of Boise, ID and a law student at the University of Idaho. Mr. Baker is a NRA-certified Home Firearms Safety and Basic Pistol Instructor as well as a Utah-certified Concealed Firearms Instructor. He holds concealed carry permits for the states of Idaho, Oregon, and Utah and is an avid outdoorsman. Unfortunately for Mr. Baker, the State of Nevada does not have concealed carry reciprocity with any of those states.

In April, Mr. Baker applied for a special use permit for a group campsite at the Wild Horse State Recreation Area north of Elko, NV. His application stated that he planned to possess a loaded firearm in his tent for self-protection. At the beginning of June, he got a response from the State Recreation Area.

“Mr. Baker has been advised that, if he brings a firearm for personal protection, he will be in violation of state law,” the legal foundation said.

“Nevada’s ban on firearms prohibits Mr. Baker from possessing a functional firearm when he is camping in Nevada state parks. He must leave his firearm in his car, unloaded at all times, even in the case of a self-defense emergency. If he were to discharge a firearm in self-defense, that action would also violate the ban. The penalty for violating the Nevada firearms ban is six months imprisonment, or a $1,000 fine, or both,” the foundation said.

The lawsuit, Baker v. Biaggi et al, seeks to enjoin the Nevada Department of Conservation and Natural Resources and the State Park System from enforcing the ban on “functional firearms”, i.e. a loaded gun, and the prohibition on defensive discharge of a firearm within the parks.

This lawsuit is unique in that it argues that a tent is a temporary residence and that the same Second Amendment right that protects the right to a firearm in a residence should apply here. If the Court accepts this argument, then the Second Amendment protections should also apply to stays in hotels, motels, and other lodging as well as a RV in a campground.

The regulation on possession of a firearm in state parks across the county is varied. States such as North Carolina totally forbid it. Other states such as Tennessee allow it with a concealed carry permit but still outlaw the discharge of a firearm. Then there are states have no restrictions on either.

Judge Edward Reed, Jr. has been assigned to this case. He was appointed to the Court by Jimmy Carter and has been in Senior Status since 1992. Given his age, at least 85, I’m surprised that it was assigned to him.

You can read the complaint below.

Baker v. Biaggi Et Al – Complaint  

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Cross-draw Yaqui Holster

July 18, 2010 by

In my day job, I drive a lot. Finding a way to carry concealed that is reasonably comfortable is hard. For me, I have found that a cross-draw carry allows both comfort and accessibility while seated in the car.

Months ago I approached custom leather maker Andy Langlois to see if I could get one of his Yaqui holsters in a cross-draw model. I wanted it for my Browning Hi-Power. He said he didn’t make a cross-draw model but would experiment to see if he could make it work. Obviously, as can be seen by the pictures, Andy did make it work.

The cross-draw Yaqui holster is made of heavy oil finished, vegetable-tanned leather. The cant is neutral to maybe 5%. Andy designed it to be easily removable by using a brass stud button. Since many of the locations I visit on work purposes forbid any firearm, it is a simple matter to remove the holstered pistol and store it in my car safe. One other great feature of this Yaqui holster is that it works with multiple pistols. I can use it with my Hi-Power or I can use it with any single-stack 1911 pistol like my Officer-sized Para CCO.

Andy Langlois is known for more than just his Yaqui holsters. His rifle slings are things of beauty. He is well-known for making a Ching Sling to use on Jeff Cooper-inspired scout rifles. I have one that I will be using on my Ruger Frontier. You can see pictures of his slings on his website here.

When I first started corresponding with Andy, I didn’t realize he was a cop. Given that he is in Vermont and doing leather work,  I figured he might be an art history major who somehow saw the light on guns. Andy found that quite amusing as he is, in his words, “the typical alpha male cop, high and tight, 2 1911s and so un-art-history!”

If you want to contact Andy for a holster, belt, sling, or other custom leather work:

Andy Langlois
PO Box 141
Windsor, Vermont 05089
andy@shottist.com
(603) 630-4072 (mobile)

His websites:
http://www.shottist.com
http://www.andysleather.com/
http://andysgunthoughts.wordpress.com
And, by the way, he is currently having a sale on some of his products!

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Would Harry Reid Sacrifice Elena Kagan to Get Re-Elected?

July 17, 2010 by

I’ve written about Elena Kagan and her confirmation hearings in the past here and here.

Now comes a story from the American Thinker by Rosslyn Smith that makes the suggestion that Harry Reid could conceivably scuttle the nomination of Elena Kagan to the Supreme Court in order to save his Senate seat. Harry Reid is in for the fight of his political life with Sharon Angle in Nevada. He even has former supporters reaching out from the grave to urge voters to vote against him.

The complicating factor for Reid is that the National Rifle Association has made Kagan’s confirmation a  “scored” vote.  Smith notes that:

The NRA’s making this a scored vote for their endorsement greatly complicates matters for Democrat Senators defending seats in Arkansas, Colorado, Washington and Wisconsin. Like House Democrats and the deficit ballooning budget that was deemed to be passed, they probably wish the matter would just go away.

Smith argues that Reid is the master of killing a nomination while appearing to move it forward. He did this to Amb. John Bolton and made Majority Leader Bill Frist look the fool in the process. She concludes her article:

It could happen. The wimpiest of the Republicans are also from rural states where gun control is anathema. NRA members could influence them even if there inclination is to give the President his nominee. This time as Majority Leader Reid would be the one looking like a fool for not counting heads ahead of time, but if he thought it would help save his seat? Looking like a fool has seldom been an issue for Harry Reid.

I’ve written my Senators – one a Democrat and the other a Republican. Have you?

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NRA/CRPA Foundation Legal Action Project Sues to Stop California AB 962

July 17, 2010 by 2 Comments

From  C. D. Michel of Calgunlaws.com:

The NRA-CRPA Foundation Legal Action Project (“LAP”) has filed a lawsuit challenging AB 962 and the newly adopted statutes that regulate “handgun ammunition.” The suit challenges the requirement that handgun ammunition be stored out of the reach of customers, the ammunition sales registration and fingerprinting requirements, and the bill’s prohibition on mail order and internet sales. The lawsuit alleges that the mandates of AB 962 are incomprehensible, and that the law’s definition of “handgun ammunition” is unconstitutionally vague.

The NRA/CRPA Foundation lawsuit has been in the works ever since AB 962 passed. A request for an injunction will be filed shortly, in an effort to stop the bill’s ammunition sales registration requirement and the ban on mail order ammunition purchases before those provisions take effect on February 1, 2011.

For months, LAP lawyers have worked to secure appropriate plaintiffs for this strategically-timed litigation. In a highly unusual move that reflects growing law enforcement opposition to ineffective gun control laws, Tehama County Sheriff Clay Parker is the lead plaintiff in the lawsuit. Other plaintiffs include the CRPA Foundation, Herb Bauer Sporting Goods, ammunition shipper Able’s Ammo, collectible ammunition shipper RTG Sporting Collectibles, and individual Steven Stonecipher.

The lawsuit is being funded by the NRA / CRPA Foundation Legal Action Project (LAP). LAP is a joint venture between the Nation Rifle Association (NRA) and the California Rifle and Pistol Association (CRPA) to advance the rights of firearms owners in California. Through LAP, NRA/CRPA attorneys fight against ill-conceived gun control laws and ordinances, and educate state and local officials about available programs that are effective in reducing accidents and violence without infringing on the rights of law-abiding gun owners.

Sometimes the chances of success are greater when LAP’s litigation efforts are kept low profile, so for now the details of this lawsuit are not being released. To see a partial list of the Legal Action Project’s recent accomplishments, click here. To contribute to the NRA / CRPAF Legal Action Project (LAP) and support this and similar Second Amendment cases, visit www.crpafoundation.org. Please register at www.calgunlaws.com to receive updates on this and other litigation as it is made available.

 From the discussion on Calguns.net, it seems that this lawsuit has not been filed yet but will be within the next two weeks. You can read the thread here.

UPDATE: Thanks to Glen I found that this case was filed on June 17th in Superior Court in Fresno, CA. The link to the case is here. However, it only gives the parties and not the complaint.

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Interesting Visitor to Post on Spoofing the Anti’s

July 16, 2010 by

Going through Sitemeter, I found this very interesting visitor to my post on Spoofing the Anti’s – the Calgunners psy ops operation against the Legal Community Against Violence.

I always thought the National Educational Association was anti-gun rights. So was it a rogue employee checking out a gun blog before everyone came into work to see stuff on gun rights and even gun porn or was it an opposition research operative? Hmmm.