Second Amendment Foundation

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Ezell II Is Another Win For The Second Amendment

January 19, 2017 by 1 Comment

The Seventh Circuit Court of Appeals decided in favor of the Second Amendment again today. In a majority decision written by Judge Diane Sykes, the court found that the new zoning restrictions imposed by the City of Chicago on shooting ranges were unconstitutional. It also found that the city’s restriction that limited range use to those 18 years of age or older was unconstitutional.

Judge Ilana Rovner concurred on one of the zoning restrictions and dissented on another one of these restrictions and on the age restriction.

I am in the midst of reading the decision now. In the meantime, here is the response of the Second Amendment Foundation which brought the original and subsequent lawsuit on behalf of Rhonda Ezell and the other plaintiffs.

BELLEVUE, WA — A three-judge panel of the Seventh U.S. Circuit Court of Appeals today handed the Second Amendment Foundation a victory in its challenge of firearms regulations in the City of Chicago, striking down a zoning provision, reversing an earlier ruling that upheld “distancing” restrictions for gun ranges, and reversing an earlier ruling that upheld certain age restrictions.

Writing for the court, Judge Diane S. Sykes noted, “To justify these barriers, the City raised only speculative claims of harm to public health and safety. That’s not nearly enough to survive the heightened scrutiny that applies to burdens on Second Amendment rights.”

“We are delighted with the outcome of this lengthy case,” said SAF founder and Executive Vice President Alan M. Gottlieb. “The extremes to which the city has gone in an attempt to narrow its compliance with the Supreme Court ruling in McDonald v. City of Chicago can only be described as incredible stubbornness. In the 6½ years since the high court ruling in our McDonald case, the city has had ample opportunity to modify its regulations. Instead, Chicago has resisted reasonableness.

“We had already sued Chicago successfully to knock down its outright ban on gun ranges within the city,” he recalled. “Then they adopted new regulations that included the zoning, distancing and age restrictions that we contested in this legal action, known as ‘Ezell II.’

“The city tried to severely limit where shooting ranges could be located, and they failed,” he continued. “The city put up arguments about the potential for gun theft, fire hazards and airborne lead contamination, and they failed. Even the judge’s opinion today noted that the city had ‘produced no evidentiary support for these claims beyond the speculative testimony of three city officials.’ This nonsense has got to stop.

“Today’s ruling is a victory for citizens of Chicago who want to exercise their rights,” Gottlieb said, “and particularly for Rhonda Ezell, who has been steadfast in her resolve.”

Also on the panel with Judge Sykes were Judges Michael S. Kanne and Ilana D. Rovner.

As a side note, Judge Sykes is one of the jurists mentioned as a possible successor to Justice Antonin Scalia by President-elect Donald Trump. Given this decision and the earlier Ezell I decision, it is my hope that she be given the strongest consideration for this nomination.

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Alan Gottlieb Of SAF/CCRKBA On Trump Win

November 10, 2016 by

Alan Gottlieb of the Second Amendment Foundation and the Citizens Committee for the Right to Keep and Bear Arms released this statement congratulating Donald Trump and Mike Pence on their win.

BELLEVUE, WA — In a joint statement, the Second Amendment Foundation and Citizens Committee for the Right to Keep and Bear Arms congratulated the nation’s gun owners for making possible Tuesday’s victory that will send Donald J. Trump to the White House in 2017.

SAF and CCRKBA also offer their sincere congratulations to President-elect Trump and Vice President-elect Mike Pence for their historic and stunning victory, and especially for Mr. Trump’s gracious call for unity among all Americans.

“What happened Tuesday night was a reaffirmation that Americans can make the system work, and that this nation’s gun owners are a cornerstone of that system,” said SAF founder and Executive Vice President Alan M. Gottlieb. “It cannot be ignored that this nation’s tens of millions of honest firearms owners turned out to protect their constitutional rights. From the outset, Mr. Trump made it clear that the Second Amendment will be safe on his watch.

“While America’s hard-working gun owners can celebrate the victory they helped make possible,” added Gottlieb, who also chairs the CCRKBA, “we must remain mindful that the gun prohibition lobby, which is largely funded by elitist billionaires like Michael Bloomberg, will almost certainly double down on their efforts to erode our Second Amendment rights at the state level, whenever and wherever they can.

“Every gun owner owes a huge ‘Thank You’ to our good friends at the National Rifle Association for their efforts and expenditures to educate and guide voters,” Gottlieb noted.

Having talked with Alan at the Gun Rights Policy Conference and listened to all the speakers there, I think there was a sense then that we were going to have to work very hard to preserve our gun rights and, even then, we might fail. That was September and this is November. My how things have shifted.

I would like to point out Alan’s thanks to the NRA for their immense efforts in this election. Alan is not only the Executive Director of SAF but also a Life Member of the NRA.

As to the NRA’s efforts, see this clip with NBC’s Chuck Todd and Tom Brokaw.

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Big Win In The 3rd Circuit

September 8, 2016 by 1 Comment

Alan Gura won a big one in the 3rd Circuit Court of Appeals for the Second Amendment. In an 8-7 en banc decision, the court found that some people who had non-violent misdemeanors and/or felonies could get their Second Amendment rights restored. The court combined the cases of Binderup v. Attorney General and Suarez v. Attorney General for their hearing.

Only three judges agreed on the court’s rationale for restoring the gun rights of  Mr Binderup and Mr. Suarez. Another five judges concurred in the outcome but for different reason while seven judges dissented. The court’s governing opinion found:

Binderup and Suarez have presented unrebutted
evidence that their offenses were nonviolent and now decades
old, and that they present no threat to society, which places
them within the class persons who have a right to keep and
bear arms. Accordingly, 18 U.S.C. § 922(g)(1) is
unconstitutional as applied to them.

The court’s opinion, concurrences, and dissent total 178 pages of somewhat confusing logic as to the restoration of gun rights. Professor Eugene Volokh presents a good summary of it here.

The Second Amendment Foundation is very pleased with the result. It is a good win going into the Gun Rights Policy Conference later this month.

BELLEVUE, WA – The Third U.S. Circuit Court of Appeals has ruled that individuals convicted of certain non-serious misdemeanor crimes do not lose their fundamental rights under the Second Amendment in a decision involving two separate cases brought by the Second Amendment Foundation.

The unanimous ruling came from an en banc panel in the combined cases of Binderup v. the U.S. Attorney General and Suarez v. the U.S. Attorney General.

In 1990, Julio Suarez was stopped on suspicion of driving while intoxicated. At the time he was carrying a handgun and spare ammunition without a permit. He pleaded guilty in Maryland state court to the charge and received a 180-day suspended sentence and $500 fine. Daniel Binderup pleaded guilty in 1996 to a misdemeanor charge related to a consensual relationship he had with a 17-year-old female employee and received three years’ probation and a $300 fine. Neither man was ever incarcerated.

However, in both cases, the crimes could have resulted in jail time for which the federal gun law blocks firearms possession. Binderup and Suarez petitioned the Pennsylvania court in 2009 to remove the state prohibition against firearms possession, but federal law “continues to bar them from possessing firearms because their convictions have not been expunged or set aside, they have not been pardoned, and their civil rights have not been restored,” the court noted.

“Where the Second Amendment’s guarantees apply, as they do for Binderup and Suarez, ‘certain policy choices’ are ‘necessarily’ taken ‘off the table.’ Forever prohibiting them from possessing any firearm is one of those policy choices,” the appeals court said in today’s ruling.

“Today’s victory confirms that the government can’t simply disarm anyone it wishes,” stated SAF attorney Alan Gura. “At an absolute minimum, people convicted of non-serious crimes, who pose no threat to anyone, retain their fundamental rights. That this is even controversial is a matter of some concern.”

SAF founder and Executive Vice President Alan Gottlieb cheered the ruling, adding that, “In an era where government officials want to disqualify as many people as possible from gun ownership, this ruling is monumental. This case will lead to the restoration of people’s civil and constitutional right to own a firearm that is long overdue.”

Gottlieb noted that today’s victory once again reinforces SAF’s long-stated mission of “Winning firearms freedom, one case at a time.”

Professor Volokh is of the opinion that if the Department of Justice decides to appeal the case it will most likely be taken up by the Supreme Court. If they do, it will be interesting to see where the Court’s liberals who are anti-gun come down on this. While they are anti-gun, they tend to be more supportive of rights for those who have broken the law in the past. Given that both Mr. Binderup and Mr. Suarez were convicted of non-violent misdemeanors for which they served no actual jail time and that they kept their noses clean after that, saying that there is a strong governmental interest in prohibiting them from possessing firearms would be a stretch.

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SAF On Their Win In The Ninth

May 17, 2016 by 1 Comment

Here is what the Second Amendment Foundation said about their win in the 9th Circuit Court of Appeals yesterday.

BELLEVUE, WA – A three-judge panel for the U.S. Ninth Circuit Court of Appeals has issued a 2-1 ruling that “the right to purchase and sell firearms is part and parcel of the historically recognized right to keep and bear arms” protected by the Second Amendment in a case brought by the Second Amendment Foundation.

SAF was joined in the case by the California Association of Federal Firearms Licensees, the Calguns Foundation, Inc., and three businessmen, John Teixeira, Steve Nobriga and Gary Gamaza. SAF was represented by noted California civil rights attorney Don Kilmer, and the case was supported by an important amicus brief filed by Virginia attorney Alan Gura for the Citizens Committee for the Right to Keep and Bear Arms. Gura won both the Heller and McDonald Second Amendment rulings before the U.S. Supreme Court.

“This is an important decision,” said SAF founder and CCRKBA Chairman Alan Gottlieb. “It remands the case back to the lower court for further proceedings consistent with the ruling as it pertains to the Second Amendment.”

The lawsuit was against an Alameda County ordinance that prohibits gun stores from being located within 500 feet of a residential zone. Writing for the majority, Judge Diarmuid F. O’Scannlain noted that, “the Ordinance burdened conduct protected by the Second Amendment and that it therefore must be subjected to heightened scrutiny—something beyond mere rational basis review.”

“Both SAF and CCRKBA can be proud of this victory,” Gottlieb stated. “We agree with Judge O’Scannlain’s explanation that ‘the county had failed to justify the burden it has placed on the right of law-abiding citizens to purchase guns. The Second Amendment,’ as the judge wrote, ‘requires something more rigorous than the unsubstantiated assertions offered to the district court.’”

Quoting the Supreme Court ruling in SAF’s 2010 landmark McDonald case, Judge O’Scannlain reiterated, “The right of law-abiding citizens to keep and to bear arms is not a ‘second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause.’”

Second Amendment attorney David Kopel does a great job in breaking down the case in a post on the Volokh Conspiracy. It is well worth a read to get a great understanding of the case.

Professor Eugene Volokh also provides a summary of the case here. However, in my opinion, it is not nearly as comprehensive as that of David Kopel. If you only have time to read one, read Dave’s.

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What If The Palestinians Were “State Representatives” To UNSCAR

April 21, 2016 by

A post on the Volokh Conspiracy by Eugene Kontorovich from Tuesday caught my eye. He was discussing the demand of 28 US senators that funding for the U.N. Framework Convention on Climate Change be stopped. The reason that they were demanding that US funding to this UN agency be stopped is that the Palestinian Authority has been accepted by that agency as a “state party”.

Federal law bars any funding for U.N. agencies or affiliates that “grants full membership as a state to any organization or group that does not have the internationally recognized attributes of statehood.” In the official U.S. view, “Palestine” is not a state. Thus when the Palestinian Authority joined the United Nations Educational, Scientific and Cultural Organization (UNESCO) in 2011, it triggered federal defunding of that organization. Now, federal law requires a similar cessation of any funding to UNFCCC.

The purpose of Professor Kontorovich’s article to speculate what might happen if the Obama Administration ignored the clear law that prohibits the funding. However, for my purposes, the article made me speculate how this law could be used to cut funding of the UN’s gun control efforts.

The Arms Trade Treaty is administered by UN Trust Facility Supporting Cooperation on Arms Regulation or UNSCAR. While the United States has not ratified the treaty, it is a signatory to it. The Arms Trade Treaty seeks to control not only major weapons systems but also small arms and ammunition. As of now, the Palestinian Authority is not considered a “state representative” to UNSCAR insofar as I can tell. That said, UNSCAR has two current projects going in the Arab and Middle Eastern states.

It would be in the interest of gun rights NGOs like the National Rifle Association and the Second Amendment Foundation to lobby to get the Palestinian Authority full recognition as a state and full membership in UNSCAR. While neither organization nor its members usually have much love for the Palestinian Authority given its connections to Hamas and the PLO, getting them recognized as a state representative does cut potential funding for more international gun control efforts.

In my view, that is a good thing.

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SAF On Garland Nomination

March 16, 2016 by

The Second Amendment Foundation has a vested interest like we all do in making sure that Justice Scalia’s replacement doesn’t undue his work. To that end, they immediately came out against President Obama’s nomination to fill the seat, Judge Merrick Garland.

From SAF:

Garland Nomination Should Be Rejected!

BELLEVUE, WA – The founder of the Second Amendment Foundation today said that the nomination of Judge Merrick Garland to the U.S. Supreme Court by President Barack Obama should be rejected.

SAF Executive Vice President Alan M. Gottlieb, reacting to this morning’s announcement, was blunt: “This is not a good nomination and Judge Garland should not be confirmed.”

President Obama nominated Garland, who is the chief judge for the U.S. Court of Appeals for the District of Columbia, to fill the seat left vacant by the untimely death of Justice Antonin Scalia, author of the landmark 2008 Second Amendment ruling in District of Columbia v. Heller. Scalia was considered a giant on the court and one of its finest conservative voices.

On the other hand, “Judge Garland voted to grant an en banc hearing to Heller after the three judge panel struck down the District of Columbia’s gun ban law. The only reason to do so would be to overturn the pro Second Amendment ruling. That was hostile to gun rights.”

Writing a few days ago in the National Review, Carrie Severino observed, “Garland has a long record, and, among other things, it leads to the conclusion that he would vote to reverse one of Justice Scalia’s most important opinions, D.C. vs. Heller, which affirmed that the Second Amendment confers an individual right to keep and bear arms.”

“Just as Second Amendment advocates have feared, President Obama is trying to change the court’s makeup to destroy the individual right to keep and bear arms,” Gottlieb stated. “This administration has done everything it can to erode the Second Amendment, and turn a right into a government-regulated privilege.

“Those of us on the front lines of the Second Amendment battle have warned for the past eight years that the right to keep and bear arms can live or die on a single vote,” he said, “and nothing makes that more clear than today’s nomination. I hope the Senate, if it takes up this nomination, promptly rejects it.”

Direct numbers for your Senators can be found here. It is time to start calling if you want to preserve your gun rights.

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SAF, NRA, And NSSF Move For Summary Judgment In Seattle Gun Tax Case

October 26, 2015 by 5 Comments

After the City of Seattle imposed a “gun violence tax” on sales of arms and ammunition within their city limits, the Second Amendment Foundation, National Rifle Association, and the National Shooting Sports Foundation jointly sued the city. Under Washington State law, cities and counties are preempted from passing regulations that impact firearms. That is reserved for the state.

This suit is groundbreaking because it is the first time the three have jointly sued on a gun rights issue. Now comes word that they have moved for summary judgment in King County Superior Court.

Plaintiffs Move For Summary Judgement In Challenge To Seattle Gun Tax

BELLEVUE, WA – Plaintiffs challenging a so-called “gun violence tax” recently passed by the Seattle City Council have today filed a motion for summary judgment in their lawsuit, citing Washington State’s long-standing preemption statute which “fully occupies and preempts the entire field of firearms regulation within the boundaries of the state.” The motion was filed in King County Superior Court.

Attorneys Steven Fogg and David Edwards, with Corr Cronin Michelson, Baumgardner Fogg & Moore LLP filed the motion for the Second Amendment Foundation, National Rifle Association, National Shooting Sports Foundation and their co-plaintiffs. They allege that the city “is well aware of this restriction on its legislative power, in part because its most recent attempt to regulate firearms was emphatically struck down by the Court of Appeals.”

That case was Chan v. City of Seattle, brought by SAF, NRA and several other plaintiffs. Fogg also argued that case. It derailed an attempt by the city under former Mayors Greg Nickels and Mike McGinn to ban guns in city park facilities. But Washington State’s preemption statute, passed 32 years ago and used as a model by other states to adopt similar legislation, stopped that effort in its tracks.

“Seattle is trying to be too clever by half,” said SAF Executive Vice President Alan Gottlieb. “Our motion shows that members of the city council brainstormed with members of local gun control groups to try to skirt the preemption law. This so-called ‘gun violence tax’ clearly seeks to limit access to firearms and ammunition by imposing what amounts to a regulatory fee on the sale of all firearms and ammunition within City limits. The city can’t do that, and we’re confident the court will tell them so.

“The city can’t even pass this off as a B&O tax, because it’s a flat fee, not a percentage of sales,” he continued. “In the final analysis, this is an attempt to skate around, and thus erode, our state’s model preemption law. That cannot be allowed to stand. The City of Seattle is not an entity unto itself, but still part of Washington State, and therefore the city has to abide by the same laws we all follow.”

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DC Is Having To Pay $75,000 In Attorneys’ Fees In Palmer Case

August 14, 2015 by 2 Comments

Thanks to the District of Columbia City Council and their anti-gun policies the taxpayers of the District are having to shell out $75,000 in legal fees to the Second Amendment Foundation. This is a result of their having lost Palmer v. District of Columbia and the award of attorneys’ fees to the plaintiffs.

From the Legal Times:

(Alan) Gura, of Gura & Possessky, represented the plaintiffs who challenged the ban. He asked the court to award $54,720 in fees and costs in August 2014, but he continued to rack up billable hours while the city contested Scullin’s ruling and the two sides fought over whether the city had complied with the judge’s decision. In June, the parties told Scullin that they were attempting to reach an agreement on fees.

Notice of the settlement was filed with the court late Thursday. Gura declined to comment, as did a spokesman for the D.C. Office of the Attorney General.

In the aftermath of Scullin’s decision in the firearms case, Palmer v. District of Columbia, the city adopted regulations for residents who wished to apply for a permit to carry concealed firearms. Gura is challenging those regulations in a pending case, Wrenn v. District of Columbia.

While I feel for the taxpayers of DC, I take heart in the fact that there are many gun prohibitionists like Ladd Everitt of the Coalition to Stop Gun Violence (sic) who live in the District.

You can read the agreement at the link to the Legal Times above.

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SAF Rips Plan To Add Social Security Recipients To NICS Database

July 21, 2015 by 1 Comment

Alan Gottlieb and the Second Amendment Foundation didn’t mince words when they ripped into the proposal to include those who have trouble managing their Social Security checks in the NICS prohibited person database. They make an excellent point when they say that gun control supporters will see nothing wrong with this proposal.

From the SAF:

BELLEVUE, WA – The Second Amendment Foundation today responded to published reports that the Obama administration is pushing to prevent citizens collecting Social Security benefits from owning guns if they have problems managing their own affairs as proof the president wants to strip as many people as possible of their Second Amendment rights while he remains in office.

“This could possibly disqualify millions of people from owning firearms and might prevent many others from seeking help,” said SAF founder and Executive Vice President Alan M. Gottlieb, himself a U.S. Army veteran. “It’s unconscionable that someone who might have problems balancing a checkbook or managing their finances would suddenly find himself or herself stripped of their right to keep and bear arms.”

The plan, according to the Los Angeles Times, “could potentially affect millions whose monthly disability payments are handled by others.” The report says this push “is intended to bring the Social Security Administration in line with laws that prevent gun sales to felons, drug addicts, immigrants in the United States illegally, and others.”

“So, let’s see,” Gottlieb observed. “The Obama administration wants to equate some Social Security recipients who own guns with felons, drug addicts and illegal immigrants. That’s not simply insulting, it’s insidious, because who knows where this could lead?

“What’s next,” he wondered. “Will they take away someone’s right to vote, claiming they’re not competent?”

Published reports estimated about 4.2 million adults are now receiving monthly Social Security benefits that are managed by someone else, designated as “representative payees.”

“What may seem reasonable to people who reflexively support any and all gun control is really just one more effort by the Obama White House to erode Second Amendment rights any way they can,” Gottlieb stated. “Taking away someone’s Second Amendment rights because they can’t manage their finances is wrongheaded and repugnant.”

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SAF Files Amicus Brief In NC Gun Range Zoning Case

June 2, 2015 by 1 Comment

The NC Court of Appeals upheld Franklin County’s Unified Development Ordinance (UDO) in a split decision in 2014. Their ruling upheld a Superior Court ruling denying the plaintiffs the ability to build a shooting range.

Aaron Byrd and Eric Coombs had sought to build a shooting range on property they owned in the county. The county’s Planning Director has first told them they couldn’t do it because the UDO didn’t list it as an approved use. The Director later amended his decision to say that Byrd and Coombs could have a range if they applied for a special use permit under the Open Air Games classification. They applied to the Franklin County Board of Commissioners for this special use permit in December 2012 and were denied.

Shortly thereafter, Byrd and Coombs were issued notices that they were in violation of the zoning code and they must “cease and desist” all activities related to the shooting range. They appealed the Code Officer’s notices to the county’s Board of Adjustment. (As an aside, I served on the Town of Wayneville’s Board of Adjustment for 19 years.) The Board of Adjustment is a quasi-judicial board whose rulings can be appealed to the Superior Court. They were turned down here and made a timely appeal to Superior Court. As noted in the first paragraph, the Superior Court upheld the ruling of the Board of Adjustment.

Byrd and Coombs contend that since the UDO made no mention of regulating shooting ranges, then they don’t need approval from the county to build their range. Moreover, they said that classifying a shooting range as an Open Air Game was in error. Finally, they argued that an earlier Court of Appeals case, Land v. Village of Wesley Chapel, has set the precedent in their favor.

The opinion of the Court of Appeals stated they agreed that the classification of the shooting range as an Open Air Game was erroneous. They they went on to say this:

However, we disagree with
Petitioners that the UDO does not regulate shooting ranges at
all, but it does in fact prohibit shooting ranges anywhere in
the County by providing that “[u]ses not specifically listed in
the Table [] are prohibited.” Accordingly, we hold that the
superior court did not err in affirming the County’s order that
Petitioners cease and desist from operating a shooting range on
the Property.

Judge Robert Hunter dissented from this opinion in part saying that he thought the Land case precedent on shooting ranges ruled in this case. It should be noted that Judge Hunter wrote the opinion in the Land case. He said the Land case “cited long-standing precedent in
rejecting the notion that a zoning ordinance may prohibit uses
not explicitly allowed.”

Byrd and Coombs have now appealed this decision to the NC Supreme Court. On Friday, the Second Amendment Foundation filed an amicus brief on behalf on the plaintiffs. The SAF’s amicus brief was submitted by Raleigh attorney Camden Webb of Williams Mullin.

The Second Amendment Foundation amicus brief notes that this case does not only involve a judicial interpretation of the county’s UDO but “implicates an important Constitutional question.” The Court of Appeals by saying that the UDO prohibits shooting ranges in Franklin County is allowing “the impermissable infringement of the Second Amendment rights of the people of Franklin County, North Carolina.”

After discussing Heller, McDonald, and the appropriate level of scrutiny, the brief goes on to discuss the 7th Circuit’s ruling in the Ezell case. There the court said the the City of Chicago’s banning of all shooting ranges within the city limits was unconstitutional saying, in part, “the core right wouldn’t mean much without the training and practice to make it effective.” The brief argues that the 7th Circuit’s reasoning should apply in this case. The brief further argues that the county did not establish a close fit between the banning of a range and the public good or interest that it serves. Given the county is primarily rural, they say the “complete prohibition of a shooting ranges in such a county simply cannot pass constitutional muster.”

I’m glad the Second Amendment Foundation filed an amicus brief in this case. The precedent set by the Ezell case must be strongly defended and this brief does that. Alan Gottlieb noted that the SAF had to sue Chicago over this same issue.