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Short Update on Bateman et al v. Perdue et al

July 16, 2010 by

Governor Beverly Perdue and Sec. of Crime Control Reuben Young were granted an extension until August 15th in which to file their response to the suit challenging North Carolina’s emergency powers gun ban, Bateman v. Perdue.

No word yet on whether the City of King or Stokes County has also been granted an extension.

I guess we will have to wait a bit longer to see what North Carolina plans to do regarding this law. Darn!

UPDATE: Stokes County was granted an extension until August 12th. So far the City of King has not been heard from.

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Next Gura Target – Westchester County, New York

July 15, 2010 by 2 Comments

Less than two weeks after Alan Gura and the Second Amendment Foundation sued the State of North Carolina, they are back. This time they are suing Westchester County, New York over its enforcement of the State of New York’s handgun carry permit process which requires the showing of “good cause.”

Alan Kachalsky and Christina Nikolov, both residents of Westchester County, were denied handgun carry permits when they applied.

Kachalsky’s denial was because he could not “demonstrate a need for self protection distinguishable from that of the general public.” Nikolov’s was denied because she could not demonstrate that there was “any type of threat to her own safety anywhere.” In addition to Westchester County, Susan Cacace and Jeffrey Cohen, both serving at times as handgun permit licensing officers, are named as defendants. The lawsuit was filed in U.S. District Court for the Southern District of New York, White Plains Division.

 The case is Kachalsky v. Cacase, U.S. Dist. Ct. S.D. NY 10-05413.

I will post the complete complaint as soon as it is available in Pacer.

Way to go Alan and Alan! Taking it solidly into unfriendly territory takes guts.

UPDATE: Mr. Kachalsky first sued in New York state court on this issue. It reached the NY State Court of Appeals (the highest level in the state of New York). His appeal was denied in February 2010. The case, In the Matter of Alan Kachalsky v. Susan Cacace, SSD 4 (2010), was dismissed by the Court sua sponte (without a request for a motion) saying there was no substantial constitutional issue involved . However, one of the judges dissented.
 
In his dissent, Judge Robert Smith said:

Petitioner’s argument, rejected by the courts below, is that Penal Law
§ 400.00 (2) (f), which requires “proper cause” for the issuance of a license to carry a concealed pistol or revolver, violates the Second Amendment to the United States Constitution. Two constitutional questions are directly involved: (1) whether the Second Amendment limits the powers of the states, as well as of the federal government; and (2) whether a prohibition on carrying concealed weapons without a showing of proper cause is consistent with the Second Amendment. I make no comment on the merits of either issue, except to say that neither is insubstantial.

He went on to say that the first question was substantial enough that the US Supreme Court had accepted the McDonald case and the second question was undoubtedly substantial due to the Heller decision.

Judge Smith’s dissent in the matter was considered a relatively rare occurance. Joel Stashenko analyzed his dissent for law.com here and includes comments from other legal scholars.

UPDATE II: The full complaint in Kachalksy v. Cacace, U.S. Dist. Ct. S.D. NY, is here. The case has been assigned to Judge Cathy Seibel, an appointee of George W. Bush.

I have embedded the case filing below. It includes the case number and judge assignment on it.

Kachalsky Et Al v. Cacace Et Al – Complaint With Judge Assignment

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Spoofing the Anti’s

July 15, 2010 by 1 Comment

Oh, those crazy kids at CalGuns.net. They planned a pro-gun demonstration at the annual fund-raising dinner for the Legal Community Against Violence in San Francisco. Only they didn’t show. It was a spoof from the beginning as they knew LCAV monitored their message board. They wanted to get LCAV all hot and bothered and worried. It worked.

From the last post explaining their actions:

Maskirovka: “The means of securing combat operations and the daily activities of forces; a complexity of measures, directed to mislead the enemy regarding the presence and disposition of forces, various military objectives, their condition, combat readiness and operations, and also the plans of the commander… maskirovka contributes to the achievement of surprise for the actions of forces, the preservation of combat readiness and the increased survivability of objectives.” – source: Jon Latimer, Deception in War, The Overlook Press, Woodstock & New York 2001

I’m sure that many of you are curious about the results of the LCAV protest. Well, they hired extra security, alerted the hotel to the potential for protests and apparently called in the SFPD to intimidate us.

But we never planned to show in the first place.

As much fun as it would have been to organize a great big ruckus, it was much more fun watching them scramble about in fear that the gun nuts were going to heap insult upon the injury of McDonald at their pyrrhic victory dinner.

And we didn’t have to expend an ounce of energy.

What was the point?

Well, we learned a bunch.

1) That past actions have convinced them to take us seriously. Calgunner attendance at City Council meetings, legislative hearings and court cases has demonstrated that we’re able to mobilize a motivated group of activists on short notice. We’ve proven to them that we show up. We’ve shown that we’re effective, too. Emeryville’s revision of their proposed ammunition ordinance proved that.

2) That they’re paying attention to us. We long suspected that LCAV was monitoring our communications. It’s one of the reasons that CGF boardmembers are circumspect when discussing legal strategies. So, please be patient when folks are using cryptic language to discuss options for regaining our rights.

3) That now they don’t know when we’re bluffing. We’ve spoofed them twice so far. Who knows what other kinds of wild goose chases we can send them on? It will be fun to learn.

4) That they’re afraid of us. Despite my assertions (and requirements) that this “action” not allow any physical contact, trespassing, etc., LCAV felt it necessary to mobilize the police and additional security.

5) That they’re irrational. In every interaction that we’ve had with the antis, we’ve been polite. We’ve been well dressed, well spoken, chivalrous and respectful. We’ve been met with profanities, threats and incivility. I wouldn’t be surprised if local officials are starting to take notice the difference in style.

Make no mistake, folks. We’re winning this fight.

Sometimes it’s not what you do, but what the other side thinks that you’re willing to do that causes the most disruption.

I’d like to offer up a special thanks to all the folks who came together to make this happen. This was a fun little exercise.

Calgunners rock!

Read the whole thread to see the anticipated demonstration. It really starts to move along at page 3.

Were the Calgunners taken seriously? Yes they were. Ezra Denney was the LCAV staffer in charge of the event. On his Facebook page he put that they “might be meeting some wacky folks tonight. Protesters are fun!”

The San Francisco PD showed up in full force with extra motorcycle and bicycle cops assigned to the dinner and anticipated protest. And as they said on the CalGuns.net board, “on this date in San Francisco: nothing happened.” You can see the pictures of the additional cops here.

I started to read their preparations last night and they had me totally fooled. From the discussions, I was expecting some sort of Code Pink demo with pictures of protesters being led away in handcuffs.Checking back this morning I found out that nothing had happened.

It was brilliant. Absolutely brilliant.

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Request for Supplemental Briefing in Nordyke Case

July 15, 2010 by

Gene Hoffman of the CalGuns Foundations reports that the attorney for Nordyke, Donald Kilmer, has filed a request with the 9th Circuit for a supplemental briefing.

Kilmer argues in his brief that:

Among other issues that were resurrected in this case by
McDonald, the County has never proffered any evidence that the
fairgrounds is a sensitive place. Because the Supreme Court was
unequivocal in its pronouncement that the Second Amendment is a
fundamental right – that must now be respected by state and local
governments – it is imperative that this Court put the County to its
constitutional burdens of producing evidence (rather than conclusory
statements) that they are addressing a compelling government interest
and that the County’s means are narrowly tailored to that interest.

I don’t know whether they will allow this supplemental briefs or not. However, Kilmer does put in a wonderful footnote that just flat out sticks it to California and to Alameda County.

It is late in the game for either the County of Alameda (or the State of California for that matter) to claim that they “know” what the scope of the Second Amendment is, when they have maintained all along that it is a meaningless
anachronism that does not define a fundamental right.

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Banned in Chicago

July 15, 2010 by 2 Comments

An example of something banned in Chicago. It is a TZ-75 made in Italy by Tanfoglio and imported by F.I.E. I did replace the original wood grips with Hogue grips.

From a description found on the Internet:

Tanfoglio TZ-75/TA-90

Notes: In the early 1980s, the Czech CZ-75 pistol had become a worldwide sensation, and demand for the CZ-75 far outstripped Ceska Zbrojovka’s manufacturing capabilities, or those of any other single firm for that matter. Ceska Zbrojovka therefore began selling licenses to several other European arms manufactures – both Eastern and Western, and also gave most of wide latitude to alter the basic CZ-75 design. Tanfoglio was one of these companies, with their version being called the TZ-75, and produced primarily for export to the US. Early export versions sold in the US by FIE were sold as the “TZ-75,” but most of these weapons, imported later by a succession of companies, were sold as the “TA-90” and are designed to appear more like the CZ-75.

The TZ-75 differs from the CZ-75 in several ways. The original TZ-75, in fact, was externally quite different in appearance from the CZ-75, with a sleeker overall shape, a more ergonomic grip, a squared trigger guard, and a larger spur-type hammer. The sights were also of the three-dot type, and larger than those of the CZ-75 (the CZ-75’s tiny sights are one of the few consistent criticisms it has received). The TZ-75 also added a slide-mounted safety/decocker, with ambidextrous controls being an option. The TZ-75 was available in several different finishes; the most common were blued and chromed. Grip plates were of walnut or rubber, and the walnut grips could be had checkered or smooth. The barrel of the TZ-75 is also just a little bit longer than that of the CZ-75’s 4.7-inch barrel – the TZ-75’s barrel length is 4.75-inches. The TZ-75 was later altered to make it look more like an actual CZ-75; though this mostly consisted of restyling, the manual safety was also moved to the frame, deleted the decocking feature, and simply locked the slide, hammer and sear. This later production TZ-75 was designated by Tanfoglio the TZ-75 ’88; for game purposes, it is identical to the TZ-75.

I just shake my head at the stupidity of whomever put the “unsafe” list together as this is a solid, well-made, all steel handgun in 9mm. Jeez!

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Another Critique of the Decsion in Skoien

July 14, 2010 by

Douglas Berman, the William B. Saxbe Designated Professor of Law at Ohio State, offers another critique of the decision in United States v. Skoien on his blog Sentencing Law and Policy.

Professor Berman says the opinion reinforces his belief that “Second Amendment jurisprudence is going to be very messy and very challenging in the months and years ahead” after the Heller and McDonald decisions. He then goes on to point out three areas in which the Skoien opinion by Chief Judge Easterbrook highlights this reality.

First, there is uncertainty about the standard of review. Should it be intermediate scrutiny, strict scrutiny, or what? The opinion cites Heller but then goes on say that they are not going to get into the scrutiny “quagmire.”

Skoien foreshadows a “quagmire” if (and when?) Second Amendment jurisprudence has to start sorting through levels of scrutiny, and its seeks to avoid this quagmire by positing that (any and all?) gun regulations are substantially related to an important governmental objective. But given that gun regulations are always aimed at improving public safety and that the creators of such regulations surely see their restrictions as substantially related to this goal, it is unclear how much more real bite is being given to a standard of review here in Skoien.

Second, the 7th Circuit is too ready to accept the government’s justification for gun control.

If preventing gun violence (i.e., “armed mayhem”) is always going to qualify as an important governmental objective, and if “logic and data” of the sort set out in Skoien is adequate to justify a very broad criminal prohibition on gun possession by a large class of persons, it seem very unlikely that many (or really any) partial gun bans will be struck down.

Finally, the 7th Circuit used questionable analogies to the First Amendment and sex offender registration in their opinion.

As the dissent notes, there are no categories of persons who are subject to criminal prosecution just for seeking to exercise a freedom to speak. (There are categories of speech not subject to constitutional protection, but this is analgous to arms like bazookas and bombs that I assume are categorically excluded from coverage by the Second Amendment.) Similarly questionable is the suggestion in Skoien that allowing registration and zoning rules for convicted sex offenders makes “generally proper” a categorical exclusion of certain misdemeanant from a fundamental right expressly protected by the Bill of Rights.

 Berman concludes by saying that while he found the opinion not convincing his goal was not to criticize the opinion but to point out how hard it will be for courts going forward “to sort through all the challenging constitutional issues implicated by modern gun restrictions and the new constitutional gun rights set out in Heller and McDonald.”

H/T to Instapundit who notes that he and Brannon Denning are writing a post-McDonald law review article. 

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Chicago’s List of “Unsafe” Handguns

July 14, 2010 by 7 Comments

The City of Chicago has released it roster of “unsafe” (sic) handguns. You can download the PDF here.

My first impression after reading the list is that they really scrounged hard to find some of those manufacturers. I would estimate that I didn’t recognize the name of about 90% of them.

They had some of the obvious choices given the demonization of anything made by Lorcin, Davis, Jimenez, or Bryco Arms by the anti-gun lobby.

They also banned everything from F.I.E. and Hi-Point. Now I may not want a Hi-Point and they get some grief in gun circles but I don’t think they are particularly unsafe. As to F.I.E.being on the list, this would mean my Tanfoglio-made F.I.E. TZ-75 9mm is banned. Obviously not much thought went into that choice as it is a solid, well made pistol.

Derringers are out. Michael Bane is going to be pissed at them that they dissed his Bond Arms derringers! Anything with a spur trigger or a sheathed trigger is out – not that you usually see these outside of collections of early pistols for the most part.

I am incredulous that they included the Walther P22, the SIG Mosquito, and anything by Whitney such as the Wolverine on the list as “unsafe”. WTF?

And, finally, in a swipe at Wile E. Coyote, they banned anything and everything by Acme and Acme Arms.

UPDATE:  A reader on SayUncle notes that the Unique DES-69U is not a cheap handgun. The Canadians include the DES-69U on a list specifically exempted from classification as “unsafe”. Why? Because it is used in Olympic shooting and it is on a list of firearms provided to them by USA Shooting. I guess that isn’t good enough for Chicago.

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7th Circuit Upholds Ban on Firearms for Misdemeanor Domestic Violence Convictions

July 13, 2010 by 1 Comment

The 7th Circuit Court of Appeals ruled en banc today that a person convicted of a misdemeanor for domestic violence is prohibited from possessing firearms. The case, United States v. Skoien, came to the 7th Circuit on appeal from the US District Court for the Western District of Wisconsin. By their ruling, the 7th Circuit en banc upheld the Lautenberg Amendment and overturned the earlier decision by a 3-judge panel of the 7th Circuit which held that the prohibition on possession was not categorical.

Josh Blackman in his blog has an extensive analysis of this case. He thinks that there will be significant ripples from this case and that it could easily head to the Supreme Court as there is some disagreement among the various Circuit Courts on the legitimacy of Lautenberg.

The dissent by Judge Sykes is important because he felt it the burden should be on the government “of justifying the application of laws that criminalize the exercise of enumerated constitutional rights. We should follow that norm, not pay lip service to it.” I’m sure it will be quoted in the future.