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Shepard V. Madigan – A Loss In District Court

March 31, 2012 by 6 Comments

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.

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The Third Win This Week!

March 8, 2012 by

In what amounts to the third legal victory for gun rights this week, the Washington Supreme Court unanimously denied Seattle’s petition for review of Seattle’s ban on guns in parks. Lower courts had found that Seattle’s gun ban violated Washington State’s preemption law and overturned the park ban.

From the Second Amendment Foundation:

SAF HAILS WA HIGH COURT DENIAL OF SEATTLE GUN BAN APPEAL

For Immediate Release: 3/8/2012

BELLEVUE, WA — The Second Amendment Foundation is delighted that the Washington State Supreme Court has unanimously denied the City of Seattle’s petition for review in the case of Winnie Chan v. City of Seattle, a legal action brought by SAF, the National Rifle Association and five individual plaintiffs.

The decision affirms the state’s long-standing preemption law and two lower court rulings, thus preventing the city from banning firearms from city parks property.

It was the third straight loss for the city, which had first attempted to ban firearms from park facilities under former Mayor Greg Nickels, in open defiance of Washington State’s model preemption statute. Following its initial loss in King County Superior Court, the city, under Nickels’ successor, Mayor Mike McGinn, appealed its loss to the State Court of Appeals. That court also ruled unanimously against the city, which petitioned the state high court last year for review.

“We are proud that the State Supreme Court panel, led by Chief Justice Barbara Madsen, unanimously rejected Seattle’s flagrant attempt to override state law and violate the civil rights of citizens living in or visiting the city,” said SAF founder and Executive Vice President Alan M. Gottlieb. “Mayor McGinn and the City Council should be ashamed that they pursued this pipe dream in an effort to turn the city into a banana republic. By letting the appeals court ruling stand, other anti-gun officials in city and county governments are on notice that they simply cannot ignore state law.

“We are equally proud of our partners in this important legal action,” he continued. “We were joined by the NRA, Washington Arms Collectors, the Citizens Committee for the Right to Keep and Bear Arms, and five courageous citizens. Our plaintiffs were willing to stand up to the city and public officials who seem determined to transform Seattle into a political gulag where a civil right can be dismissed at will in the interest of political correctness.

“And finally,” Gottlieb stated, “we are all very proud of our legal team led by Steve Fogg and Molly Malouf at Corr Cronin. They did a marvelous job, not only for their clients, but for the citizens of this state, whose civil rights apply everywhere, whether the City of Seattle likes it or not.”

You will note that both the Second Amendment Foundation and the NRA were parties in the original case. It is good to see that they can work together when needed.

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Eat Your Heart Out, Violence Policy Center!

January 18, 2012 by 2 Comments

The Violence Policy Center loves to moan and groan about how the NRA gets so much money from the firearms industry. Sturm, Ruger and Company, in a drive to break the one million firearm sales mark for one year, pledged to donate $1 for each firearm sold over a one year period. Through three quarters, Ruger has sold 871,200 firearms and donated an equal amount to the NRA. They have just decided to raise their pledge to $1.2 million.

Eat your hearts out Josh Sugarmann and Kristen Rand because the Joyce Foundation is never going to match this!

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This Is What The NRA Does Well

November 21, 2011 by 2 Comments

While I have often been critical of the NRA when they have meddled in court cases or have brought cases with not enough focus, I have also recognized that they are very good in the electoral and legislative arenas. A prime example of their legislative expertise can be seen in the items included of interest to gun owners in the recent minibus appropriations bill.

Friday, November 18, 2011

The final conference report on the combined Fiscal Year 2012 Agriculture, Commerce/Justice/Science (CJS) and Transportation/Housing/Urban Development (THUD) Appropriations bills—also known as the “Mini-Bus,” was passed by both the U.S. House and the U.S. Senate, and has been signed into law.

One of the most important ways that Congress has protected the Second Amendment is through a number of general provisions included in various appropriations bills. Many of these provisions have been included in the bills for many years—some of the provisions go back almost three decades. This conference report is no exception, as it contains 12 provisions that strengthen the Second Amendment and protect the American people.

Specifically, the conference report makes PERMANENT the following protections:

  • Firearms Database/National Gun Registry Prohibition. No funds may be used to create, maintain or administer a database of firearms owners or their firearms. This prohibition has been in place since Fiscal Year 1979, and prevents the federal government from establishing a national gun registry.
  • Former Firearms Dealers Information Retrieval Prohibition. No funds may be used to electronically retrieve personally identifying information gathered by federal firearms licensees. The provision prohibits the creation of a gun registry from dealers’ records that are required by law to be surrendered to the federal government when a dealer goes out of business. This provision has been included since FY 1997.
  • Information Gathering Prohibition/24-Hour Destruction of Records. A prohibition on the use of funds to retain any information gathered as a part of an approved instant background check for more than 24 hours. This provision protects the privacy of law-abiding gun buyers by prohibiting gun buyers’ personal information about legal gun purchases from being retained by government authorities for more than 24 hours after a firearm background check. It has been included since FY 1999.


In addition, the conference report adds two NEW provisions designed to bolster our gun rights and protect the Second Amendment from unelected bureaucrats who would twist the law to facilitate their gun-control agenda.

  • Prohibit Funding for “Gun Walking” Operations. No funds may be used to knowingly transfer firearms to agents of drug cartels unless U.S. law enforcement personnel control or monitor the firearms at all time. This amendment is designed to prevent the Justice Department (or any government entity) from spending taxpayer dollars on “gun walking” programs like Operation Fast and Furious.
  • Shotgun Importation Protections. Prohibits the Department of Justice from requiring imported shotguns to meet a “sporting purposes” test that the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) has used to prohibit the importation of shotguns with one or more features disliked by the Agency, such as adjustable stocks, extended magazine tubes, etc.


Finally, the conference report RETAINS the following provisions:

  • Curio and Relic Definition. A prohibition on the use of funds to change the definition of a “curio or relic.” This provision protects the status of collectible firearms for future generations of firearms collectors.
  • Physical Inventory Prohibition. Prohibition on a requirement to allow a physical inventory of Federal Firearms Licensees. The Clinton Administration proposed a rule in 2000 to require an annual inventory by all licensees. While the Bush Administration eventually withdrew the proposal, Congress has still passed this preventive provision every year since FY 2007.
  • Business Activity. A prohibition on the use of funds to deny a Federal Firearms License (FFL) or renewal of an FFL on the basis of low business activity. This provision prohibits BATFE from denying federal firearms license applications or renewals based on a dealer’s low business volume alone.
  • Firearms Trace Data Disclaimer. A requirement that any trace data released must include a disclaimer stating such trace data cannot be used to draw broad conclusion about firearms-related crime.
  • Firearms Parts Export to Canada. A prohibition on the use of funds to require an export license for small firearms parts valued at less than $500 for export to Canada. This provision removed an unnecessary and burdensome requirement on U.S. gun manufacturers that was imposed under the Clinton Administration.
  • Importation of Curios and Relics. A prohibition on the use of funds to arbitrarily deny importation of qualifying curio and relic firearms. This provision ensures that collectible firearms that meet all legal requirements for importation into the United States are not prevented from import by executive branch fiat.
  • Transfer of BATFE Authority. A prohibition on the use of funds to transfer any duty or responsibility of the BATFE to any other agency or department. This provision was written in response to a Clinton Administration plan to transfer firearms enforcement to the FBI or Secret Service. It also prohibits the Executive branch from skirting the will of Congress by allowing another agency to implement policies the BATFE is prohibited from implementing.
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NSSF To File Amicus Brief In Jennings v BATFE Appeal

October 25, 2011 by

In their Bullet Points newsletter, the National Shooting Sports Foundation announced plans to file an amicus brief in support of the NRA’s appeal of Jennings et al v. BATFE. This was the NRA’s challenge in U.S. District Court for the Northern District of Texas on the prohibition of the sale of handguns to 18-20 year old adults by Federal Firearm Licensees.

In response to a ruling by a federal judge in the Northern District of Texas in favor of the federal government in a case brought by the NRA challenging the federal restriction on the purchase of handguns by 18-20 year old adults, NSSF plans to file a friend-of-the-court brief in support of NRA’s appeal of the ruling. In the case, Jennings v. Bureau of Alcohol, Tobacco, Firearms and Explosives, the NRA and a group of responsible young adults argued that since 18-20 year olds are considered adults for virtually every other purpose, such as voting and military service, adults in this age group should also be able to purchase handguns from licensed retailers. A similar case, in which many of the same plaintiffs challenge the state of Texas’ ban on issuance of right-to-carry permits to adults under 21, remains pending in the same court

Attorneys for the plaintiffs filed their appeal on October 7th and the case was assigned a docket number last week on the 19th. No briefs have yet been filed.

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Jennings et al v. BATFE et al Loses In District Court

September 30, 2011 by 2 Comments

The NRA challenge to the ban on purchases of handguns from licensed dealers for those over 18 but under 21 was found in the favor of the defendants by U.S. District Court Judge Sam Cummings yesterday. The suit, Jennings et al v. BATFE et al (former D’Cruz v. BATFE), was brought in the U.S. District Court for the Northern District of Texas.

The NRA brought this suit approximately one year ago along with a companion suit against the State of Texas to allow the same age group concealed carry licenses. Texas currently only allows those who are serving or have served in the military to be able to obtain Texas concealed carry permits if they are under the age of 21. These are the suits in which the Brady Campaign took the low road and tried to villify James D’Cruz due to his Halloween costume.

The NRA brought both suits on Second Amendment and Equal Protection grounds.

The first thing Judge Cummings considered was whether the plaintiffs had standing to sue. The DOJ attorneys sought to have the case dismissed under Fed. R. Civ. P. 12(b)(1) saying that the court lacked subject matter jurisdiction over the complaint. Judge Cummings denied their Motion to Dismiss saying:

The ban prevents 18- to 20-year-olds from purchasing handguns and handgun ammunition from FFLs who would likely purchase these items were it legal to do so. The NRA presents evidence from its vendor members that they have lost profits from refusing to sell handguns to 18- to 20-year-olds and would sell handguns to law-abiding citizens in this age range if it were legal to do so. The fact that the ban restricts a would-be buyers’ market demonstrates a judicially cognizable injury directly affecting FFLs. See Craig, 429 U.S. at 194. As such, the NRA also has standing to bring this suit on behalf of its FFL members.

Judge Cummings then examined whether the ban on the sale of handguns by FFLs to the 18 to 20-years olds violated their rights under the Second Amendment. Noting along the way that nothing precluded them from purchasing handguns in private sales, he said that based upon the exceptions noted in Heller and on 5th Circuit precedent which made a distinction between possessing and the dealing of firearms, the rights of this age group were not violated under the Second Amendment. He then suggested that it was up to Congress to make the decision on this.

In essence, it is within the purview of Congress, not the courts, to weigh the relative policy considerations and to make decisions as to the age of the customer to whom those licensed by the federal government may sell handguns and handgun ammunition.

With that he granted the government’s Motion for Summary Judgment and denied the plaintiffs cross-motion for summary judgment as to the Second Amendment grounds. He also denied as moot the defendant’s motion to dismiss on Rule 12(b)(6) grounds (failure to state a complaint).

Finally, Judge Cummings examined whether this ban on the sale of handguns by FFLs to 18 to 20-years olds violated their rights under the Equal Protection Clause. While these rights apply expressly to the states, the Supreme Court has found that the Due Process Clause of the 14th Amendment encompasses the rights provided by the Equal Protection Clause.

Noting that the Supreme Court has held that age is not a suspect classification and that the defendants had presented evidence that Congress in passing the Gun Control Act of 1968 had made the considered decision that this age group was “emotionally immature, or thrill-bent juveniles and minors prone to criminal behavior”, he again found that the government was not violating the plaintiffs’ Equal Protection rights. He applied a Rational Basis scrutiny to this claim and said:

Congress identified a legitimate state interest—public safety—and passed legislation that is rationally related to addressing that issue—the ban; thus, it acted within its constitutional powers and in accordance with the Equal Protection Clause.

With that he granted the defendant’s Motion for Summary Judgment, denied that of the plaintiffs, and denied the defense motion to dismiss under Rule 12(b)(6) on their Equal Protection claim.

I would presume now that the NRA will appeal this case to the 5th Circuit as they needed a judgment at this level before they could move up the appellate chain. I know Alan Gura has said that in the cases he has brought for the Second Amendment Foundation that he has sought a quick decision, whether good or bad, so that the cases can then be brought to the relevant Circuit Court of Appeals.

Sebastian at Snowflakes in Hell is critical of Judge Cummings’ attempt to punt a decision on this back to Congress.

So Congress could say no one who has not yet attained the age of 90 is permitted to own a firearm, and that is completely within Congress’ purview? The Courts should have nothing to say about it? What other right do we treat that way?

It continues to amaze me how little regard lower courts have for Heller and McDonald. Maybe there’s sound legal reasoning involved here. I have not seen the opinion. But punting to Congress strikes me as awfully weak.

While I would agree with Sebastian, I do think Judge Cummings threw the NRA a bone when it said they and the plaintiffs had standing to sue. I don’t think it is reasonable to expect a District Court judge to go against precedent within his own circuit nor what other courts have said post-Heller on this sensitive issue. I think by saying they had standing and by closing this case out in just a little over a year, Judge Cummings may have done as much as he could do. This case was always going to be appealed regardless of how he ruled.

UPDATE: The NRA-ILA has announced plans to file a prompt appeal of Judge Cummings’ ruling in this case.

Yesterday, a federal judge in the Northern District of Texas ruled that the federal ban on dealer sales of handguns to adults from the ages of 18 to 20 does not violate the Second Amendment. The National Rifle Association plans to file a prompt appeal of the court’s ruling to the Fifth Circuit U.S. Court of Appeals.

“We strongly disagree with this ruling,” said Chris W. Cox, Executive Director of the NRA Institute for Legislative Action. “As we said when we filed this case, adults 18 and up have fought and died for American freedom throughout our country’s history. They are adults for virtually every legal purpose under federal and state law, and that should include the ability to buy handguns from licensed dealers to defend themselves, their homes and their families. Our fellow plaintiffs in this case are law-abiding and responsible young adults. We plan to defend their rights to the very end.”

The case is Jennings v. Bureau of Alcohol, Tobacco, Firearms and Explosives. A related case challenging Texas’ ban on issuance of concealed handgun licenses to adults in the same age group is still pending before the same court.

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Movement In CRPA-NRA Lawsuit Against San Francisco

September 28, 2011 by 4 Comments

Jackson v. City and County of San Francisco was filed back in May of 2009. The suit challenges three San Francisco ordinances on Second Amendment grounds. Yesterday, Judge Richard Seeborg of the U.S. District Court for the Northern District of California issued a ruling on San Francisco’s Motion to Dismiss for Lack of Jurisdiction. He denied their motion and said the case can move forward.

More on this from attorney Chuck Michel:

On September 27, 2011, Judge Richard Seeborg of the United States District Court, Northern District of California, issued his long awaited ruling on San Francisco’s Motion to Dismiss for Lack of Jurisdiction. Holding that the plaintiffs had “adequately alleged an intent and desire to engage in conduct that is prohibited by the ordinances but which they contend is constitutionally protected,” the court denied the City’s motion. The case, entirely funded by the NRA and CRPA Foundation, can now move forward toward a determination of its merits. The full text of the court’s Order Denying Motion Dismiss for Lack of Standing can be viewed here at www.calgunlaws.com.

The order was issued in Jackson v. City & County of San Francisco, No. 09-2143 (N.D. Cal.). The Jackson lawsuit, filed on May 15, 2009, challenges three San Francisco ordinances on Second Amendment grounds. Specifically, the lawsuit alleges that the City’s enactment and enforcement of three city ordinances requiring firearms be disabled by a trigger lock or stored in a locked container, banning the sale of ammunition that “serves no sporting purpose,” and prohibiting firearm discharges with no self-defense exception unduly burdens the right to self-defense. The Jackson case has already been successful in forcing the City to amend its discharge ban, a law that has been in place for some 73 years, to allow for discharges in self-defense, defense of others, and all other circumstances allowed for under state and federal law.

On February 10, 2011, the City responded to Plaintiffs’ Complaint with a motion to dismiss the case based on its claim that the City does not enforce the challenged ordinances. As such, the City argued, Plaintiffs have no legitimate fear of prosecution and otherwise suffer no injury by complying with the law. The technical claim was that Plaintiffs lack “standing” to bring their claims, based on the dearth of prosecutions to date. In short, the City exposed itself as unconcerned that its ordinances in fact coerce law-abiding citizens to surrender their constitutional right to self-defense.

Plaintiffs responded on March 23, 2011, arguing the City’s motion should be denied. Plaintiffs regarded as unpersuasive the City’s claims that its ordinances are not and have not been enforced and that Plaintiffs suffer no injury by obeying these laws. Ultimately, Plaintiffs asked the court to recognize the very real harm they each suffer by complying with the unconstitutional laws.

The court’s ruling did just that. Plaintiffs laud the decision, upholding reason over rhetoric and recognizing the “immediacy and concreteness of the injury [Plaintiffs] have alleged” and the unreasonableness of requiring a self-defense emergency, or a criminal prosecution, to arise before judicial review of these laws is available. The ruling paves the way for future Second Amendment litigants in the Ninth Circuit.

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More On NRA/CRPA Amicus Briefs

September 2, 2011 by

The NRA and the CRPA filed amicus briefs in the California carry case Richards v. Prieto. The release from Chuck Michel is below which explains them in more detail.

August 31, 2011 – Today, the California Rifle and Pistol Foundation (“CRPA Foundation”) and the National Rifle Association filed amicus briefs in support of appellants in Richards v. Prieto, who have challenged California’s regulatory scheme governing the issuance of permits to carry concealed firearms (“CCW permits”) and Yolo County policies for its (non)-issuance of permits to residents seeking to exercise their right to carry a loaded firearm in public.

At issue in Richards is a Yolo County policy conditioning the issuance of CCW permits on a wholly discretionary assessment of each applicant’s “moral character” and stated “good cause.” In practice, Yolo’s policy prohibits the vast majority of county residents from obtaining a permit.

In its brief, available here, CRPA Foundation argues in support of the appellants that Yolo County’s CCW permitting policies are unconstitutional to the extent they deny law-abiding residents the only lawful means of exercising their right to bear operable handguns for self-defense anywhere in the State, despite the United States Supreme Court’s declaration that armed self-defense is a “central component” of our Second Amendment rights.

CRPA Foundation’s brief further provides an historical analysis of the right to keep and bear arms, which establishes that Yolo County’s broad prohibition on the carriage of loaded firearms is categorically unconstitutional and, at a minimum, fails to satisfy the heightened scrutiny required of regulations that so severely burden the right as to eliminate it altogether.

CRPAF is itself currently before the Ninth Circuit, litigating its own challenge to prohibitory local CCW permitting policies. Briefing in that case, Peruta v. San Diego, will be completed onASeptember 6, 2011.

In its brief, available here, NRA provides the Ninth Circuit panel with significant background on the practices and experiences of other states in issuing carry permits throughout the nation. NRA’s amicus brief beautifully illustrates the fact that issuing such permits to law-abiding citizens will not increase crime rates and may, in fact, cause them to fall.

The CRPA amicus brief is available here.

The NRA amicus brief is available here.

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Classy Move

September 2, 2011 by 1 Comment

The NRA and the California Rifle and Pistol Association just filed an amicus brief in a California carry case, Richards v. Prieto. In return, the Second Amendment Foundation just issued this press release yesterday expressing their thanks for the NRA/CRPA support. Its good to see them playing well together!

SAF THANKS NRA, CRPAF FOR AMICUS BRIEFS IN RICHARDS V. PRIETO CASE

For Immediate Release: 9/1/2011

BELLEVUE, WA – The Second Amendment Foundation today thanked the National Rifle Association and California Rifle and Pistol Foundation for filing amicus briefs in SAF’s challenge of Yolo County, California’s policies that exploit the state’s regulations on the issuance of concealed firearms carry permits.

Joining SAF in that lawsuit is the CalGuns Foundation. The case is known as Richards v. Prieto. It targets Yolo County’s arbitrary policy that requires CCW applicants to provide good cause for obtaining a permit, and subjects each applicant to a “moral character” standard.

“The policies practices in Yolo County are clearly unconstitutional and should be overturned,” said SAF Executive Vice President Alan M. Gottlieb. “We filed the lawsuit because citizens should not be subjected to such policies simply in an effort to exercise their rights to bear arms for personal protection.

“We are delighted that our good friends at both the NRA and CRPA have filed briefs in support of this cause,” he continued. “Authorities in Yolo County who are trying to perpetuate this egregious policy despite the Supreme Court’s clear determination that self-defense is a cornerstone tenet of the right to keep and bear arms.”

Gottlieb noted that the overwhelming majority of the states have adopted shall-issue statutes for concealed carry licenses or permits, and that they have worked remarkably well by removing the authority from local officials who may want to abuse complicated regulations such as those that exist in the Golden State.

“State and local governments should be scrambling to review, and where necessary, adjust firearms laws and regulations in the wake of two Supreme Court rulings on the Second Amendment,” Gottlieb said. “When local governments continue to resist, rather than comply with, the principles and spirit of high court rulings and the Constitution, we’ll continue to meet them in court. As NRA and CRPAF have demonstrated with their briefs in this case, when we take people to court, we’re going to have company.”

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Sunnyvale Planning Commission Wants To Impose Unconstitutional Restrictions Due To NIMBYs

August 26, 2011 by 6 Comments

Attorney Chuck Michel who works with the NRA/CRPA Legal Action Project in California posted an article this evening about the Sunnyvale, California Planning Commission. The Planning Commission is seeking to have the Sunnyvale City Council adopt a new municipal ordinance which would put increased restrictions on the sale of firearms in Sunnyvale. The Commission is responding to unfounded complaints from some neighbors of a firearms dealer that opened in Sunnyvale in 2010. The complaints include that they weren’t notified and that children walk by the store on their way to school as if just merely seeing guns will turn their kids into the next Klebold and Harris (of Columbine infamy).

NRA & CRPA OPPOSE NEW REGULATIONS RESTRICTING FIREARMS DEALERS IN SUNNYVALE, CA

On August 22, 2011, the Planning Commission for the City of Sunnyvale held a meeting to consider the City’s ongoing “Firearms Sales Study Issue.” The issue originated when a firearms dealer, U.S. Firearms, opened for business in Sunnyvale in the fall of 2010. Despite the fact that the dealer had all necessary permits and licenses from both the state and federal government, neighbors made complaints to Sunnyvale staff and elected officials.

The Sunnyvale Planning Commission ultimately decided to sponsor the issue as a result of the complaints, but the City Council ranked it number 4 of 4 for 2011. Even though this issue had the lowest ranking by the City Council for 2011, and the fact that the Staff Report on the issue (AVAILABLE HERE) indicates that “there has been no evidence of increased crime, property devaluation or land use incompatibilities as the result of the businesses,” and Sunnyvale “staff ha[d] not identified any adverse land use impacts associated with a firearms store,” the Planning Commission nonetheless recommended that the City Council adopt an ordinance to amend the City’s municipal code to place restrictions on firearm sales in Sunnyvale. Though the staff report acknowledged there had been no problems with firearm sellers, staff nonetheless inexplicably noted in the report that, “[t]he greatest concern regarding firearm sales is the business operator that is engaged in buying and selling the firearms.”

The approved ordinance would: 1) add a definition for “firearms sales business;” 2) prohibit these businesses in commercial and industrially-zoned districts within 200 feet of public schools in order to provide a buffer to the schools; and 3) require a new DPS Firearms Dealer Permit that would include additional conditions such as requiring a security plan to be installed and then inspected by the City, and that the Federal Firearm License (FFL) holder and all employees meet the state and federal requirements regarding past criminal convictions, etc. (current requirements are limited to the dealer and not the employees).

Michel & Associates attorneys submitted an opposition letter to the Planning Commission on behalf of the National Rifle Association (NRA) and California Rifle & Pistol Association (CRPA) noting that firearm dealers are subject to a variety of background checks at both the state and federal levels. The letter (AVAILABLE HERE) also noted that firearm dealers are generally some of the most upstanding members of society, and that after the Supreme Court’s McDonald decision, they enjoy a protected status as purveyors of a fundamental right. So the fact that some “residents [of Sunnyvale] have expressed [unfounded] concerns about the potential crime and public safety risk associated with a firearm sales business located near their homes and schools” does not mean that the City of Sunnyvale is free to infringe on fundamental Second Amendment rights.

The letter explains that since the Second Amendment is a newly court-recognized right, the contours of the Second Amendment’s protections are still being litigated in courtrooms across the country. The letter also amicably explains the current legal landscape regarding firearm regulation, and suggests Sunnyvale should avoid litigation on these issues by consulting with the NRA, CRPA, and their attorneys.

As the city continues moving forward with the proposed ordinance, additional correspondence will be submitted.

I have examined the 141 page staff report submitted to the  Sunnyvale Planning Commission. Much of the document was devoted to reporting on the comments at a public meeting on the issue. Approximately 120 people attended the June 2011 meeting and it appears that the overwhelming majority were against any new regulations and were indeed pro-rights. Many of the letters received also support the existing gun store, U.S. Firearms, and gun stores in general.

However, the Legal Community Against Violence (LCAV) has weighed in on the issue with a 59 page submission urging the Planning Commission to adopt new regulations. Unfortunately, this submission and not the majority of the residents of Sunnyvale seems to have carried the day. You must wonder if LCAV will also foot the legal bills for Sunnyvale when they get the pants sued off of them on Second Amendment grounds. I somehow doubt it.