I saw something put out yesterday by NRA-ILA that brought back memories.
If you have ever read Adam Winkler’s book Gunfight: The Battle over the Right to Bear Arms in America (#commission earned), you know there were those within the NRA that tried to discourage the Heller case. The fear was that a loss in the Supreme Court would forever end the Second Amendment as an individual right. Nonetheless, Alan Gura, Bob Levy, and Clark Neily persisted and the case went to the Supreme Court where it was won.
Alan Gura has since moved on to become the VP for Litigation at the Institute for Free Speech. He is the lead counsel on an amicus brief supporting the respondents in a case before the US Supreme Court. That case, Lackey v. Stinnie et al, deals with entitlement to attorneys fees in civil rights cases and preventing the government from strategically mooting cases to avoid paying these fees.
The issue before the Court is whether plaintiffs who win a preliminary injunction granting their requested relief are “prevailing parties” under 42 U.S.C. § 1988(b)—and thus entitled to attorney fees—when that injunction is never reversed. The amici argue that if such plaintiffs are not “prevailing parties,” governments that violate constitutional rights would be able to avoid attorney fee awards by strategically mooting cases. This would embolden abusive governments and discourage public interest litigation. By contrast, requiring the government to pay attorney fees for violating constitutional rights deters such violations and ensures that civil rights plaintiffs can afford to vindicate their rights through litigation.
Joining the NRA and Institute for Free Speech as amici in this brief are Southeastern Legal Foundation, Cato Institute, New Civil Liberties Alliance, Liberty Justice Center, and Second Amendment Foundation.
I am glad to see old adversaries now cooperating. Even more important is the NRA’s win in NRA v. Vullo which dealt with free speech and governmental coercion intended to suppress it. There is no question the case was a win for the NRA but it was also remanded back to the Second Circuit for further proceedings. There is nothing to say New York State won’t adopt a law or regulation that would effective moot this case. Attorneys have told me it can cost upwards of $1 million (or more) to bring a case up through the courts and be heard by the Supreme Court. It would be nice to have New York’s Department of Financial Services have to pay this back to the NRA.
Gov. Roy Cooper (D-NC) today declared a state of emergency that covers all of North Carolina. It was declared in response to the spread of COVID-19 or the coronavirus. As of Monday, there have been seven confirmed cases of it with six of those in Wake County and the seventh in Chatham County. For non-North Carolinians, that is Raleigh and the Pittsboro/Siler City areas.
Governor Roy Cooper took the next step in the state’s coronavirus COVID-19 preparedness plan today and issued an executive order declaring a state of emergency. The declaration activates the Emergency Operations Center to help agencies coordinate from one location and makes it easier to purchase needed medical supplies, protect consumers from price gouging, and increase county health departments’ access to state funds…
Key provisions in the order are similar to those enacted in a natural disaster. The order will help with the cost burdens and supplies that may be difficult for providers and public health to access due to increased demand. It also increases the state public health department’s role in supporting local health departments, which have been tasked with monitoring quarantines, tracing exposure and administering testing.
Executive Order No. 116 in its entirety is found here.
Let’s take a trip down memory lane back to January 2010 when there was a heavy snow storm in the Piedmont of North Carolina. The City of King and Stokes County were particularly hard hit. In response, Gov. Beverly Perdue and both locales declared states of emergency. This automatically triggered then NC General Statute § 14-288.7(a) which provided, in part,:
“it is unlawful for any person to transport or possess off his own premises any dangerous weapon or substance in any area: (1) In which a declared state of emergency exists; or (2) Within the immediate vicinity of which a riot is occurring.”
The City of King went further and invoked their powers under NC General Statute § 14-288.12(b). This “forbade the sale or purchase of firearms and ammunition, as well as the possession of firearms and ammunition off an individual’s premises.” It also banned the sale of alcoholic beverages.
Thus, any time a state of emergency covering all of North Carolina or any time a city or county declared a state of emergency, § 14-288.7(a) kicked in and you could not carry a firearm outside your own home. There were no exceptions made for those of us who hold a Concealed Handgun Permit.
Fast forward a few months to June and the US Supreme Court handled down a monumental Second Amendment ruling. That was, of course, McDonald v. Chicago which applied the Second Amendment as an individual right to the states under the 14th Amendment. That was on the morning of June 28, 2010.
The problem here is that the emergency declaration statutes, are not narrowly tailored to serve the government’s interest in public safety. They do not target dangerous individuals or dangerous conduct. Nor do they seek to impose reasonable time, place and manner restrictions by, for example, imposing a curfew to allow the exercise of Second Amendment rights during circumscribed times. Rather, the statutes here excessively intrude upon plaintiffs’ Second Amendment rights by effectively banning them (and the public at large) from engaging in conduct that is at the very core of the Second Amendment at a time when the need for self-defense may be at its very greatest. See Heller, 128 S. Ct. at 2799 (” [A] mericans understood the ‘right of self-preservation’ as permitting a citizen to ‘repe[l] force by force’ when ‘the intervention of society in his behalf, may be too late to prevent an injury. ‘ ” (quoting 1 Blackstone’s Commentaries 145-146, n.42 (1803) ) (second alteration in original)) . Consequently, the emergency declaration laws are invalid as applied to plaintiffs.
Thanks to Alan Gura, the Second Amendment Foundation, and Grass Roots North Carolina just because seven people have COVID-19 and the governor has declared a state of emergency you can no longer be disarmed. We owe them and the individual plaintiffs a debt of gratitude.
Alameda County, California includes cities such as Oakland, Pleasanton, and Berkeley. It also plays fast and loose with its zoning laws and how they interpret distances. John Teixeira and some associates wanted to open a gun store in an unincorporated area of Alameda County back in 2012. The zoning law there forbids gun stores within 500 feet of a residence, school, or liquor store. Teixeira met those requirements and was given a conditional use permit and variance from his local zoning board of adjustment. Then the Alameda County Board of Supervisors decided to change how distance was measured for zoning purposes. Thus, a survey of all empty lots showed that Teixeira could not meet the “new and improved” standards anywhere in the unincorporated areas of the county.
What the county did was institute a variant of “redlining”. In this case it was used to ban gun stores. In the past it was used to make sure that blacks and other minorities were restricted to living in certain areas. Both are a violation of civil rights.
Given this, Mr. Teixeira sued and was joined in his suit by the Second Amendment Foundation, the California Association of Federal Firearm Licensees, and the Calguns Foundation along with two other individual plaintiffs. The case was lost in US District Court but was initially a win before a three-judge panel of the 9th Circuit Court of Appeals. I’m sure you can guess the rest of the story. The anti-gun judges of the 9th Circuit forced it into an en banc hearing in which they agreed with the District Court and negated the win.
Yesterday the plaintiffs in the case filed an appeal with the US Supreme Court asking for a writ of certiorari. The attorneys on the case are Don Kilmer and Alan Gura. The brief can be found here.
The plaintiffs issued the following statement of the appeal:
Supreme Court Asked to Review Alameda County Gun Store Ban
WASHINGTON, D.C. (January 9, 2018) – Attorneys for three civil rights advocacy organizations and three individuals have filed a petition seeking United State Supreme Court review of a controversial 2017 decision by the Ninth Circuit Court of Appeals that upheld an Alameda County, California law effectively banning gun stores within the unincorporated area of the county. A copy of the petition (and other case documents) can be viewed at https://www.calgunsfoundation.org/teixeira.
The lawsuit, first filed in 2012, challenged a county ordinance that prohibits gun stores from being located within 500 feet of places that include residentially zoned districts. But, according to a scientific study conducted by the plaintiffs that included a Geographic Information Systems (GIS) evaluation of all parcels in Alameda County, there are no lots within the unincorporated county that meet the ordinance’s 500-foot-rule requirements.
On appeal, the plaintiffs won before a three-judge panel of the Ninth Circuit. But that opinion was vacated and reversed following an en banc rehearing before the full appeals court. Now the case is being appealed to the nation’s highest court.
“You simply cannot allow local governments to ignore the Second Amendment because they don’t like how the Supreme Court has ruled on the amendment twice in the past ten years,” noted Second Amendment Foundation founder and Executive Vice President Alan M. Gottlieb. “You shouldn’t be able to zone the Second Amendment out of the Bill of Rights.”
“Local neighbors who live eight lanes across an interstate and the anti-rights politicians that cater to them can’t redline gun stores and the right to buy arms out of existence,” noted The Calguns Foundation’s Chairman, Gene Hoffman. “Since this case was filed multiple local city and county governments have used unconstitutional zoning laws to stop new gun stores from opening and close down existing gun stores. If this was a book store or an abortion clinic, the Ninth Circuit would not have hesitated in striking this zoning regulation unanimously.”
“The Supreme Court declared that the Second Amendment was not a second-class right, but lower courts are ignoring that and holding otherwise—and so far, they’ve been getting away with it. We hope this case gets individual liberty back on track,” added California Association of Federal Firearms Licensees’ founder and Executive Vice President Brandon Combs.
“The federal courts exist, in part, to protect fundamental rights that might not be popular in certain jurisdictions,” noted California attorney Don Kilmer, who represents the plaintiffs. “Today, in the Ninth Circuit, those are gun rights. Tomorrow, who knows? One question presented by this case is whether our rights are subject to only one Constitution, or do those rights change from state to state?”
Second Amendment Foundation (SAF) is joined in the case by California Association of Federal Firearms Licensees (CAL-FFL), The Calguns Foundation (CGF), and three businessmen, John Teixeira, Steve Nobriga, and Gary Gamaza. They are represented by Virginia attorney Alan Gura and California attorney Don Kilmer.
The 2017 Gun Rights Policy Conference starts this evening in Irving, Texas. For those that don’t know, it is sponsored by the Second Amendment Foundation and the Citizens Committee for the Right to Keep and Bear Arms. And what could be a better way to start this conference than a win in the US Circuit Court of Appeals for the District of Columbia in the Wrenn case.
The Court of Appeals has refused to hold an en banc review of Wrenn v. DC which is a win for gun rights in the District of Columbia. The Wrenn case invalidated the District’s requirement that a citizen show “good reason” in order to obtain a carry permit. The question is now whether the District of Columbia will appeal this to the United States Supreme Court. The last time they appealed such a loss in a gun rights case was in DC v. Heller and we know how that turned out for them.
BELLEVUE, WA — The U.S. District Court of Appeals for the District of Columbia Circuit has turned down a request from the city for an en banc hearing on the concealed carry case of Wrenn v. District of Columbia, amounting to a strategic win for the Second Amendment Foundation.
According to the court, not a single judge on the court requested a hearing. Earlier, a three-judge panel had ruled in favor of plaintiffs Brian Wrenn and SAF. The case challenges the District’s carry permit policy that requires citizens to provide a “good reason” to be issued a permit. The Appeals Court struck down that requirement.
“Ten years ago, Washington D.C.’s political leadership tried to extinguish Second Amendment rights before the Supreme Court,” noted attorney Alan Gura, who represents the plaintiffs. “The result was D.C. v. Heller, a tremendous victory for the rights of all Americans. With the court of appeals again confirming the people’s right to bear arms, Washington, D.C.’s politicians must once again ask themselves whether it makes sense to keep resisting our fundamental rights.”
Gura successfully argued both the 2008 District of Columbia v. Heller case and 2010 McDonald v. City of Chicago case before the U.S. Supreme Court. Both cases dealt directly with Second Amendment issues. Heller affirmed that the amendment protects an individual right to keep and bear arms, and McDonald incorporated the Second Amendment to the states via the 14thAmendment.
SAF founder and Executive Vice President Alan M. Gottlieb was delighted with the court’s decision not to grant the en banc hearing.
“We are grateful,” Gottlieb observed, “that the court has shown considerable wisdom, and this should help advance the effort to assure reasonable concealed carry for District residents. It represents one more advancement in our effort to win firearms freedom one lawsuit at a time.”
The victory comes on the eve of the 32nd annual Gun Rights Policy Conference in Dallas, Texas. The event is co-sponsored by SAF and the Citizens Committee for the Right to Keep and Bear Arms.
It looks like things are starting to settle down in Charlotte after the recent violence. You may have noticed some of the stories that referenced local citizens rushing out to buy firearms. Of course my readeers know that you should have the means to armed self-defence before the SHTF.
According to a spokesperson for Hyatt Gun Shop most of the purchases were for 12-gauge shotguns and buckshot. What was never mentioned in these stories is the purchase of a handgun in North Carolina requires either a pistol purchase permit or a NC Concealed Handgun Permit. Absent one of those two documents, you were legally restricted to purchasing a long gun. This is true even if it was a private sale.
While the Alan Gura’s win in Bateman overturned the previous restrictions on possession of a firearm outside the home during a state of emergency as well as the restriction on firearm sales, we are still stuck with the Jim Crow-era pistol purchase permit.
Grass Roots North Carolina has been fighting the battle to get the permit system repealed for a number of years. They sent out the following alert yesterday afternoon requesting people contact both Gov. Pat McCrory (R-NC) and his Democratic opponent Attorney Gen. Roy Cooper (D-NC) urging them to support repeal of this system.
DELAYS IMPERIL CITIZENS
As Charlotte burned, the Jim Crow-era bureaucracy denied gun
purchases to the terrorized . . .
Aficionados of Natural rights know that free citizens should not be
forced to obtain permission slips from the bureaucracy before exercising
their
protected rights. In fact, it has always been GRNC’s position that
archaic and shameful laws designed to deny citizens their rights, like
the
Jim Crow-era Pistol Purchase Permit (PPP), must be eradicated. With all
of GRNC’s moral arguments and its unceasing effort to eliminate the PPP
system, never before has the need to discard this old-fashioned and
embarrassing legality been so obvious—and so critical.
A Right
Delayed is a Life put in Peril
As you may be aware, several
counties around the state, including Mecklenburg County, have been using
bureaucratic loopholes and high-demand for guns as an excuse to
severely
delay the issuance of PPPs and Concealed Handgun Permits (CHP). Indeed,
it is true that, “a right delayed is a right denied.” However,
in the context of a city ravaged by violent rioters, it should also be said that, a right delayed is a life put in peril. As a small
but deviant portion of Charlotte’s populace, reinforced by out-of-state agitators,
attempted to raze Charlotte,
law-abiding and rightfully terrified citizens lined up to purchase
much-needed handguns to protect their families, only to be told, “no.”
These citizens were told that they would be barred from purchasing
defensive handguns until the weeks-long, and now often delayed, PPP
and/or CHP
process could be completed. The Sheriff and other law enforcement
officials are paid to protect and serve the citizens, and thank goodness
for the
officers on the street. However, it is ironic that the law enforcement
bureaucracy has been weighted to keep these same citizens from
protecting
themselves, particularly when the need is so immediate, and the
situation so dire.
In the context of riots, where citizens are at more risk than
ever
and law-enforcement is overwhelmed, laws delaying the citizen’s access
to defensive weapons serve only to empower the thugs, thugs who seek to
hurt these citizens and their livelihoods. This must end!
Below, see how
you can easily contact NC’s two contenders for governor. Remind them
that you have not forgotten about this critical issue. Let them know
that, even outside of the legislative season, this is an issue that is
worthy of
great attention, and gun owners will continue to monitor their actions
on this; and actions after November will speak louder than words spoken
before
November. Remind them that, ultimately, the requirement for PPPs and
CHPs (government “permission slips”) must be eliminated as a step
toward genuine rights-recognition for law-abiding citizens in North
Carolina.
IMMEDIATE ACTION
REQUIRED!
PHONE GOVERNOR
McCRORY AND ATTORNEY GENERAL COOPER: Use the phone numbers provided below, and tell them:
I am calling to inform [The Governor / Mr.
Cooper]
that, at the same time deadly riots raged in Charlotte, frightened
citizens were denied their right to obtain defensive handguns. This
happened due to
our state’s outdated Jim Crow-era Pistol Purchase Permit system and the
weeks-long process to obtain a concealed handgun permit (CHP). This
denial of civil rights has the potential to cost innocent lives, and it
is entirely unacceptable. We must end these archaic and dangerous PPP
and CHP
systems, which only serve to put citizen’s lives in peril. I insist that
this be addressed in the upcoming legislative session, and that [The
Governor / Mr. Cooper] prioritize the repeal of these shameful and
dangerous systems.
Governor Pat
McCrory: (919) 814-2000
Attorney General Roy Cooper: (919) 716-6400
(Candidate for Governor)
EMAIL GOVERNOR McCRORY AND ATTORNEY GENERAL
COOPER: Use the links to
their web forms provided below, and the text provided under ‘Deliver this Message’ to send a message.
Dear [Governor McCrory] / [Attorney General Cooper]:
I am writing to
inform you that as deadly riots raged in Charlotte, frightened citizens
were denied their right to obtain defensive handguns. This denial of
rights,
which clearly put untold numbers of law-abiding citizens in peril, was
due to our state’s outdated Jim Crow-era Pistol Purchase Permit (PPP)
system, and the weeks-long process required to obtain a concealed
handgun permit (CHP).
In this context of civil unrest, it seems fitting to remind
our
state’s gubernatorial candidates that voters have not forgotten about
this critical issue. Even outside of the legislative season, this is an
issue that is worthy of great attention. The peaceful and law-abiding,
who clearly have reason to fear for their safety, will continue to
monitor your
actions on this issue. You must work to put an end to these archaic and
dangerous PPP and CHP systems, as it is your duty to protect the rights
of
North Carolina citizens, and not least among these is their right to
protect themselves.
As we saw last week, these PPP and CHP systems only serve
to
empower the unlawful and put innocent lives in peril. I insist that the
repeal of these embarrassing throw-backs be a priority of yours in the
upcoming legislative session. And please be aware: actions after
November will speak much louder than words spoken before November.
I will be watching
your actions on this topic through alerts from Grass Roots North Carolina.
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 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.
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.
(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.
Cody Wilson of Defense Distributed and the Second Amendment Foundation have joined forces to sue the State Department on First, Second, and Fifth Amendment grounds. They contend the the State Department through its Directorate of Defense Trade Controls misused ITAR regulations to force Defense Distributed to take down its files for the Liberator pistol among other items. The State Department’s Office of Legal Counsel as far back as 1978 had said that the use of ITAR to impose prior restraint on “privately generated unclassified information in the public domain” violated the First Amendment.
The big guns are being brought to bear on this fight. Lead counsel is Alan Gura. The legal team also includes Prof. Josh Blackman of South Texas College of Law who has published on this topic in the Tennessee Law Review and attorneys from the global intellectual property firm of Fish & Richardson (no relation!). Fish & Richardson just happens to be the top intellectual property firm in the United States by all rankings.
SAF Sues Feds Over Censorship Of 3-D Firearms Printing Information
BELLEVUE, WA – The Second Amendment Foundation today joined Defense Distributed of Austin, Texas, in filing a federal lawsuit against Secretary of State John Kerry, the Department of State and other federal officials, seeking to stop the Government’s unconstitutional censorship of information related to the three-dimensional printing of arms.
The Government’s restraint against the publication of this critical information, under the guise of controlling arms exports, violates the First Amendment right to free speech, the Second Amendment right to bear arms, and the Fifth Amendment right to due process, the lawsuit alleges.
SAF and Defense Distributed seek to publish 3-D printing information at no cost to the public. Constitutional attorney Alan Gura of Gura & Possessky leads the litigation team, which also includes William “Tommy” Jacks, Bill Mateja, and David Morris of Fish & Richardson; export control counsel Matthew Goldstein, and constitutional law Professor Josh Blackman.
“Americans have always been free to exchange information about firearms and manufacture their own arms,” said SAF founder and Executive Vice President Alan M. Gottlieb. “We also have an expectation that any speech regulations be spelled out clearly, and that individuals be provided basic procedural protections if their government claims a power to silence them.”
The lawsuit asserts the defendants are unlawfully applying International Traffic in Arms Regulations (ITAR) to prevent the plaintiffs from exercising in free speech on the Internet and other forums. ITAR “requires advance government authorization to export technical data,” the complaint asserts. There are criminal and civil penalties for violations, ranging up to 20 years in prison and fines of up to $1 million per violation.
Defense Distributed generated technical information on various gun-related items, which it published on the Internet. But it removed all the files from its servers upon being warned that it “may have released ITAR-controlled technical data without the required prior authorization from the Directorate of Defense Trade Controls (DDTC), a violation of the ITAR.” In June 2013, Defense Distributed submitted various published files to DDTC for review of a machine called the “Ghost Gunner.” In April, DDTC said the machine does not fall under ITAR, but that software and files are subject to State Department jurisdiction.
“Defense Distributed appears to be caught in what seems to be a bureaucratic game of merry-go-round,” Gottlieb said. “The right to keep and bear arms includes the ability to acquire or create arms. The government is engaging in behavior that denies the company due process under the Fifth Amendment. We’re compelled to file this action because the bureaucracy is evidently playing games and it’s time for these agencies to behave.”
Just think, if Hillary Clinton had hung around a little longer at the State Department, the suit could have been titled Defense Distributed et al v. Hillary Clinton et al!
UPDATE: This case has caught the attention of the New York Times and Wired. I’m not surprised by Wired but the Times is a bit surprising. They note that Cody Wilson and Defense Distributed have a “high-powered legal team” and quote another First Amendment expert as saying this lawsuit is “not frivolous”. Hmm.
A Federal judge in Ft. Worthy yesterday said that the ban on the interstate sale of handguns was unconstitutional. By interstate, I mean where the purchaser both buys and takes possession of his or her handgun in a non-resident state. The Gun Control Act of 1968 allowed the interstate sale of long guns but expressly forbid it for handgun. This is a big win for gun rights. It is also a win for Alan Gura as well as the Citizens Committee for the Right to Keep and Bear Arms.
CCRKBA WINS SAF-FUNDED CASE ON INTERSTATE HANDGUN TRANSFER BAN
Wednesday, February 11th, 2015
BELLEVUE, WA – The Citizens Committee for the Right to Keep and Bear Arms today won a major federal court ruling in a case involving interstate handgun transfers in which the judge applied strict scrutiny to determine whether a ban on such transfers meets constitutional muster.
The case, which was financially supported by the Second Amendment Foundation, is known as Mance v. Holder. It involves plaintiffs residing in the District of Columbia and Texas, and could have far-reaching ramifications, according to CCRKBA Chairman Alan Gottlieb.
“Our lawsuit strikes at the heart of a debate that has been ongoing for several years, since the creation of the National Instant Check System (NICS),” Gottlieb said. “With the advent of the NICS system, it makes no sense to perpetuate a ban on interstate transfers of handguns.”
Indeed, in his ruling, U.S. District Court Judge Reed O’Connor of the Northern District of Texas, Fort Worth Division, writes, “(T)he Court finds that the federal interstate handgun transfer ban burdens conduct that falls within the scope of the Second Amendment.”
The judge later added, “By failing to provide specific information to demonstrate the reasonable fit between this ban and illegal sales and lack of notice in light of the Brady Act amendments to the 1968 Gun Control Act, the ban is not substantially related to address safety concerns. Thus, even under intermediate scrutiny, the federal interstate handgun transfer ban is unconstitutional on its face.”
CCRKBA and the individual plaintiffs are represented by Virginia attorney Alan Gura and Texas attorney William B. “Bill” Mateja of Fish & Richardson in Dallas.
“It is bizarre and irrational to destroy the national market for an item that Americans have a fundamental right to purchase,” Gura observed. “Americans would never tolerate a ban on the interstate sale of books or contraceptives. And Americans are free to buy rifles and shotguns outside their state of residence, so long as the dealers respect the laws of the buyer’s home state. We’re gratified that the Court agreed that handguns should be treated no differently.”
I’m sure it will take a while for FFLs to get updated on this, but unless the government appeals the ruling, and the decision is stayed or reversed, the 11th of February will go down as the day we won Interstate sales of handguns through FFLs. This is a great win for us, and one which I would like to congratulate and thank Mr. Gura and his plaintiffs.
UPDATE: it’s not clear to me how the ruling applies geographically. Clearly it applies in the Northern District of Texas. But it orders the Attorney General (any by extension anyone working under him) to stop enforcing the requirement, so may apply anywhere: if he enforced it in Maine or in Washington, he’d have violated the injunction, and could be held in contempt by the Texas court. Citizens’ Committee for the Right to Keep and Bear Arms was an organizational plaintiff (the court cites to it without the first word in its name), suing on behalf of its members, so the ruling would protect, at the very least, its members.
The lead plaintiff in the lawsuit, Fredric Russell Mance, Jr aka Rick Mance is a fellow gun blogger and blogs at Traction Control. His response is summed up in his headline: Heh. He also has links to other posts about the decision.
I have not had a chance to read the full decision yet as I was podcasting last night. I hope to have another post up after I read through the decision. In the meantime, you can find the opinion and order from US District Court Judge Reed O’Connor here.
The District of Columbia was sued today by the Second Amendment Foundation on behalf of two DC residents and one Florida resident who resides in Virginia. The suit challenges DC’s “good reason” requirement to be issued a concealed carry permit. Currently, only eight permits have been issued out of 69 applications.
Attorney Alan Gura is representing the plaintiffs in the suit entitled Wrenn et al v. District of Columbia
BELLEVUE, WA – The Second Amendment Foundation today filed a federal lawsuit challenging the District of Columbia’s highly restrictive concealed carry permit requirement that applicants provide a “good reason” before such a permit is issued, which violates the Second Amendment right to keep and bear arms.
The lawsuit was filed in U.S. District Court for the District of Columbia. SAF is joined by three private citizens, Brian Wrenn and Joshua Akery, both of Washington, D.C., and Tyler Whidby, a Florida resident who also maintains a residence in Virginia. The city and Police Chief Cathy Lanier are named as defendants.
The lawsuit asserts that “individuals cannot be required to prove a ‘good reason’ or ‘other proper reason’ for the exercise of fundamental constitutional rights, including the right to keep and bear arms.” All three individual plaintiffs in the case have applied for District carry permits and have been turned down by Lanier because they could not “Demonstrate a good reason to fear injury to person or property.”
“The city’s requirements to obtain a carry permit are so restrictive in nature as to be prohibitive to virtually all applicants,” said SAF founder and Executive Vice President Alan M. Gottlieb. “It’s rather like a ‘Catch 22,’ in which you can apply all day long, but no reason is sufficiently good enough for Chief Lanier to issue a permit.
“Because of that,” he added, “the city has set the bar so high that it relegates a fundamental civil right to the status of a heavily-regulated government privilege. That is not only wrong, it also does not live up to previous court rulings. Law-abiding citizens who clear background checks and are allowed to have handguns in their homes are being unnecessarily burdened with the additional requirement of proving some special need.
“The last time we checked,” Gottlieb concluded, “we had a Bill of Rights that applied to the entire nation, including the District. It’s not, and never has been, a ‘Bill of Needs’.”
The city is still appealing its earlier loss in Palmer v. D.C., the SAF-sponsored case that struck down the city’s total ban on carrying handguns. The courts have not yet ruled on SAF’s claim that the city’s “may issue” law violates the Palmer injunction.
“We will give the courts every chance to bring Washington, D.C. into constitutional compliance,” said attorney Alan Gura, who represents SAF and the other plaintiffs in both cases.
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