Impressions On The Win In Palmer v. District Of Columbia

By now, many of you are aware that attorney Alan Gura got another big win for the Second Amendment with his win in Palmer v. District of Columbia. US District Court Judge Frederick J. Scullin, Jr. ruled that DC’s ban on any sort of carry outside the home was unconstitutional under any level of scrutiny. The decision has been reported in most of the big papers ranging from the Washington Post to the Chicago Tribune to the New York Times (which they buried on page A16).

Congratulations must go to attorney Alan Gura, the Second Amendment Foundation, and the four individual plaintiffs led by Tom Palmer for bringing the fight to the District of Columbia and DC Police Chief Cathy Lanier. Without their efforts, there would be no win for carry in DC and, potentially, for carry in other areas.

Having read the Memorandum-Decision and Order from Judge Scullin, I was struck by a number of things. First, and most important, was the importance to this win of prior cases ranging from Heller and McDonald to Peruta, Ezell, and Moore v. Madigan. Alan Gura has stressed many times in public appearances and in private conversations that the expansion of Second Amendment rights is a building process. Just like the strategic civil rights litigation of Thurgood Marshall and the NAACP Legal Defense Fund didn’t end segregation overnight, neither will the Second Amendment Foundation, the NRA, and others involved in the legal battle to advance our Second Amendment rights win back what we lost overnight.

Second, dissents in past cases are often as important as majority opinions. For example, Judge Scullin quotes from the dissent in the New Jersey carry case of Drake v. Filko (originally Muller v. Maenza) by Judge Hardiman of the 3rd Circuit.

To speak of ‘bearing’ arms solely within one’s
home not only would conflate ‘bearing’ with ‘keeping,’ in derogation of the Court’s holding that
the verbs codified distinct rights, but also would be awkward usage given the meaning assigned
the terms by the Supreme Court.

Perhaps a more important dissent quoted in the case was by Justice Ruth Bader Ginsberg from Muscarello v. United States regarding the “natural meaning of ‘bear arms'”. Justice Ginsberg said in her dissent that to bear arms means to “wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with
another person.” While some may question quoting Justice Ginsberg, I think it was a masterful move by Judge Scullin.

Third, even losses in Second Amendment cases can be important for future wins. For example, even though cases such as Kachalsky from New York, Drake from New Jersey, and Woollard from Maryland failed to overturn their respective states’ rationales for granting their may-issue carry permits, they still helped Judge Scullin reach the conclusion that the Second Amendment guarantees a right to bear arms outside the home.

In light of Heller, McDonald, and their progeny, there is no longer any basis on which
this Court can conclude that the District of Columbia’s total ban on the public carrying of readyto-
use handguns outside the home is constitutional under any level of scrutiny. Therefore, the
Court finds that the District of Columbia’s complete ban on the carrying of handguns in public is

 Fourth, it is significant that this decision applies to both residents and non-residents of the District of Columbia. This means that, as of now, the District of Columbia and its entire bureaucracy including the Metropolitan Police Department are enjoined from enforcing the laws forbidding carry outside the home against both groups. While Judge Scullin found the equal protection and right to travel challenges to residency requirements were not ripe, they may come up again in the future after the District develops a concealed carry permit law.

As I said last night on The Polite Society Podcast, I fully expect this decision to be appealed. The Washington Post reported earlier this evening that DC’s Attorney General plans to seek a stay in Judge Scullin’s order while they decide whether to appeal the loss.

I’ll let Alan Gura have the final say on the implications of this case:

“The decision is in effect, unless and until the court stays its decision,” Gura said Sunday. “This is now a decision that the city is required to follow — the idea that the city can prohibit absolutely the exercise of a constitutional right for all people at all times, that was struck down. That’s just not going to fly.”

Gura said allowing citizens to carry handguns for self-defense will cut crime. “This is a fantastic improvement in public safety,” he said. “Yes, we have a problem in America with gun violence. But no, that problem is not the result of law-abiding people carrying guns.”

The Anti-Gun Regime In Chicago Is Getting More Expensive

The more the anti-gun regime of Chicago Mayor Rahm Emanuel tries to suppress Second Amendment rights in that city, the more it is costing them as they lose in the courts. The only downside is that it is the people of Chicago having to pay the bill and not Mayor Emanuel and his gaggle of aldermen.

A case in point. The US District Court for the Northern District of Illinois just ordered the City of Chicago to reimburse the NRA over $900,000 for their legal fees fighting the ban on gun stores there.

From the NRA’s release announcing the court-ordered award:

The United States District Court in the Northern District of Illinois has ordered the City of Chicago to reimburse $940,000 in legal expenses incurred by the NRA. The NRA had challenged Chicago’s ban on gun sales within city limits in Benson v. City of Chicago. The Benson case was consolidated into Illinois Association of Firearm Retailers v. City of Chicago and that case challenged five aspects of Chicago’s law: (1) the ban on any form of carriage; (2) the ban on gun stores; (3) the ban on firing ranges; (4) the ban on self-defense in garages, porches, and yards; and (5) the ban on keeping more than one gun in an operable state.

This is the second time that the City of Chicago has been ordered to reimburse legal fees in a suit sponsored by the NRA. The first was following the U.S. Supreme Court’s landmark ruling in McDonald v. City of Chicago in which Chicago was ordered to reimburse the NRA more than $600,000.

You may remember that the City of Chicago paid the Second Amendment Foundation $399,950 in attorney fees for the McDonald case. The NRA got even more.

I’m not sure what Chicago had to pay when they lose the Ezell case but it can’t be cheap.

And while we are in the state of Illinois, let’s not forget the legal fees that will be paid by the good citizens of Illinois to the NRA and the Second Amendment Foundation for their wins in the joint cases of Moore v. Madigan and Shepard v. Madigan. The state of Illinois is trying to be a bit more parsimonious than Chicago given the way they are haggling over fees submitted by Alan Gura.

100 Most Influential Lawyers In America

The National Law Journal released its list of the 100 most influential lawyers in America. Listed amid the partners at the DC mega-firms, former Solicitor Generals, the Attorney General of New York, was Second Amendment attorney Alan Gura. He is called the master of gun litigation.

Meet the master of gun litigation. Alan Gura surprised gun-control
groups in 2008 by winning a 5-4 U.S. Supreme Court decision overturning
D.C.’s 33-year-old handgun ban. The decision blasted away decades of
precedent. In 2010 came another 5-4 ruling overturning Chicago gun laws
and expanding the reach of the Second Amendment. Last year Gura, 42,
persuaded the U.S. Court of Appeals for the Seventh Circuit to strike
down a Chicago law forbidding individuals from carrying guns in public.
With Congress and state legislatures considering new gun-control laws in
light of the Newtown, Conn., mass shooting, Gura’s services are likely
to be even more in demand.

In an interesting symmetry, Alan’s opposing counsel in the Heller case, Walter Dellinger, made the list as did former Chicago mayor Richard Daley whose anti-gun laws led to the McDonald case.

Another attorney with sterling Second Amendment credentials making the list is Prof. Eugene Volokh of UCLA and the Volokh Conspiracy blog.

Attorneys were selected for inclusion on the list based on five criteria – political clout, media presence, thought leadership, business leader, or legal results. Alan Gura was chosen based upon his legal results.

Ninety-Nine Judges

Tom Gresham devoted his entire three-hour show on Sunday to the elections and the impact that they will have on gun owners and gun rights. The guests ranged from the NRA’s Wayne LaPierre and Chris Cox to SAF’s Alan Gottlieb and NSSF’s Larry Keane. In addition, he interviewed attorney Alan Gura. The one thing every guest said about this election and gun rights was the critical importance of judicial appointments to securing gun rights.

The interview that really peaked my interest was with Alan Gura. Tom asked Alan straight out what would have happened if there had been a 5-4 majority with a Sotomayor or Kagan in that majority, could he have won Heller or McDonald? Alan’s response, “Probably not. I mean NO. There would be no way.”

Alan went on to say that lower Federal Court nominees rarely make the news and are often confirmed on voice votes. Given that few cases make it to the Supreme Court much of the case law is made at the District and Circuit Court levels.

Alan pointed out that there are currently 65 District Court vacancies, 15 Appeals Court vacancies, and another 19 judges who have indicated that they plan to retire or more into senior status. This means the next president will get to nominate at least 99 judges and probably more like 150-200 over the next four years. This does not even take into consideration a probable one to three Supreme Court nominations.

Remember this – all Federal judges serve a lifetime appointment. This means that the next president will get to nominate at a minimum one-tenth of all District Court judges and one-tenth of all Court of Appeals judges. The impact will be felt for years and years.

This is what this election is about: the future direction of the Federal judiciary and with it our rights as gun owners and Americans.

If you haven’t already voted, then you damn well better do it tomorrow. And when I say vote or voted, I sure as hell don’t mean for Obama.

UPDATE: I forgot to add that if Obama is re-elected and gets to replace one of the “Heller Five” then  Second Amendment litigation will grind to a halt. At the recent Gun Rights Policy Conference, Gene Hoffman of the CalGuns Foundation emphasized this point and said the best thing to do in that situation is to shut down Second Amendment litigation. The reason is that you can’t risk bringing a case that could end up before a decidedly unfriendly Supreme Court.

Busy Week For Alan Gura

This has been a busy week for Alan Gura. He has had not one but two oral arguments on back to back days before the 4th Circuit Court of Appeals. Moreover, both cases involve gun rights.

The first case, Lane v. Holder, is a challenge to the Gun Control Act of 1968’s ban on the sales of handguns to non-residents of a state. The case was filed in 2011 and challenged the law on behalf of Michelle Lane, a resident of the District of Columbia, who had purchased two handguns in Virginia and could not pick them up there. At the time of the original filing, there was no active FFL in DC. The Second Amendment Foundation, Amanda Welling, and Matthew Welling are also plaintiffs in this case.

US District Court Judge Gerald Bruce Lee of the Eastern District of Virginia denied the motion for a preliminary injuction in July 2011. He also dismissed the case at that time. A few days later, Lane and the Second Amendment Foundation filed notice of appeal to the 4th Circuit Court of Appeals.

The oral argument in this case were on Tuesday and an audio file is available here. The case was heard by Judges Diana Gribbon Motz, Allyson K. Duncan, and Henry F. Floyd. They were appointed to the 4th Circuit by Presidents Bill Clinton, George W. Bush, and Barack Obama respectively.

The arguments presented by both Alan Gura and the attorneys for Department of Justice and the VA State Police centered primarily around the issue of standing. Does the plaintiff have standing to ask for an injunction given the Federal and state laws in question restrict the FFL? Gura argues that they do and compares this case to other cases involving interstate wine shipments and contraceptives. The Supreme Court find in those cases that the restriction of distribution channels amounted to an Article III injury or, in layman’s terms, interference with interstate commerce. The counter-arguments from the attorneys for Holder and the VA State Police argue that there is no standing for the plaintiffs. The attorney for Virginia argued that their law would be valid if the Federal law was found unconstitutional or amended. They would transfer handguns to out of state residents because the person would meet the new requirements. The Department of Justice attorney argues that the out of state residents are not harmed as they can purchase a firearm anywhere and have it shipped to an in-state FFL. She also argued that Federal law merely backs up local laws and regulations regarding handgun sales.

Much of the questioning by the judges centered around having only one dealer in DC and the fees charged by Charles Sykes. One judge, I believe Judge Duncan, brought up the Ezell case and wondered how this differed from that. This question was aimed at the DOJ attorney.

The second case, Woollard v. Gallagher, has attracted more attention because the District Court ruled against the State of Maryland’s may-issue carry laws. The State of Maryland promptly appealed and the oral arguments were present yesterday. The audio of the oral arguments should be made available on Friday. In the meantime, thanks to Sebastian, there is a link to the Baltimore Sun’s coverage of the oral arguments.

UPDATE: The Washington Post has more on the oral arguments. The 3 judge panel consisted of Judges Andre Davis (Clinton), Robert King (Clinton), and Albert Diaz (Bush 44). 

UPDATE II: The audio file for Woollard v. Gallagher has been posted. You can download or listen to it here.

Enough Was Enough

Linoge at Walls of the City has done yeoman’s work in compiling the record of plagiarism, theft, copyright violations, and outright lies perpetrated in the name of gun blogging by Robert Farago and his minions at Tthe Truth About Guns. This post was a long time in the making and probably overdue. As Linoge notes, he was assisted in his efforts by a number of other pro-rights bloggers and I’m happy to say I was one of them.

What brought this to a head and resulted in the Linoge’s “uber-post” were two events that happened at the Gun Rights Policy Conference. The first was the awarding of a SAF Defender of Liberty award (one of many) to Farago. When the Second Amendment Foundation made the award they were unaware of Farago’s duplicitous past of plagiarism, copyright violations, and lies. An uber-post like that of Linoge – and the linking of it by other reputable gun bloggers – will help prevent this sort of error in the future.

The second, and much more serious, event was the treatment of Washington Times senior editor Emily Miller by Farago. Not only did he ambush her in the hallway in a creepy manner but his subsequent posts were beyond the pale. From Emily’s comments on the encounter which she posted at Shall Not Be Questioned:

Thank you so much for this post. I felt ambushed by that guy. He was
very creepy and jumpy, which made me nervous. I should have trusted my
instincts, but instead stayed and answered all his questions politely. I
don’t know why he feels the need to repeatedly attack me for being a
girl and for not having extensive training in the six months I’ve owned a
gun. That’s all true, but I’ve also gotten the gun laws changed in D.C.
to make it easier to get a legal gun, so the haters don’t affect my

If you do read Linoge’s post – and you should – you will see a report of an incident at the 2011 NRA Annual Meeting involving similar rude and condescending behavior by Farago towards attorney Alan Gura. I was there, I witnessed it, and I was furious. 

Alan Gura and Emily Miller have in their different ways done more for gun rights in the last five years than virtually anyone out there. We don’t need the National Enquirer of the gun blogosphere treating them like dirt. It is as simple as that. We can quibble about whether it matters if Farago is a plagiarist or not but rude, boorish, and condescending behavior towards good people doing great work should always be called out.

Kachalsky v. Cacace – Oral Arguments Before The 2nd Circuit Court Of Appeals

Kachalsky v. Cacace was the second case filed by the Second Amendment Foundation after their Supreme Court win in McDonald. It challenged the State of New York’s requirement to show “good cause” before the issuance of a carry permit. Judge Cathy Seibel using intermediate scrutiny found for the defendants and against the plaintiffs saying that the State of New York had an important governmental interest in regulating carry. She also said that the Second Amendment protections as affirmed in Heller only applied to “hearth and home.”

Alan Gura filed a notice of appeal on September 12, 2011 to the 2nd Circuit Court of Appeals. The oral hearings were finally held late last month on August 22nd. The judges hearing the case were Judge Robert Katzmann (Clinton appointee), Judge Richard Wesley (George W. Bush appointee), and Judge Gerald Lynch (Obama appointee).

The 2nd Circuit does not automatically publish the audio file of the oral hearings unlike some other circuits like the 7th. Fortunately, thanks to a generous donor who paid for the audio files, Maryland Shall Issue was able to get a copy and has posted them on their website. You can find it here. The entire hearing runs for about 36 minutes.

Thanks to the contemporaneous notes sent to me by a reader who attended the hearings, I was able to follow most of it. The primary questioners of Alan Gura were Judge Wesley and Judge Lynch with the occasional question from Judge Katzmann. I have to admit that their accents are so similar to me that it was hard for me to distinguish between them.

Judge Wesley did admit to being an avid hunter but then went on to say that he didn’t know if handguns were the preferred weapon of choice for home defense. I guess it wouldn’t be too smart to call a judge a Fudd.

I think it went well enough and I share Sebastian’s cautious optimism on the outcome of the case. Alan Gura is an exceptionally skilled appellate attorney and held his own very well. When the judges would go off on tangents he would still make sure to reiterate his essential points regarding the Second Amendment, Heller, and carry.

Leonard Embody Loses….Again

The 6th Circuit Court of Appeals affirmed the dismissal of the case that Leonard Embody brought against Tennessee park ranger Steve Ward today.

The Court found that Embody’s 2nd, 4th, and 14th Amendment Rights were not violated when he was stopped in Radnor Lake State Natural Area while open-carrying a Draco AK-47 pistol. The Draco had an 11 1/2 inch barrel and had the tip of the muzzle painted orange much like an airsoft toy.

This case has been troublesome since the start due to Mr. Embody’s hubris. To be frank, he went looking for trouble, found it, was momentarily detained, and then sent on his merry way no worse the wear. In response he filed a suit in US District Court for the Middle District of Tennessee. The end result of that was to have everyone’s Second Amendment rights circumscribed due to that court’s decision which misread the Heller decision.

As Judge Sutton of the 6th Circuit noted in his opinion:

For his troubles, Embody has done something rare: He has taken a position on the Second and Fourth Amendment that unites the Brady Center to Prevent Gun Violence and the Second Amendment Foundation. Both organizations think that the park ranger permissibly disarmed and detained Leonard Embody that day, notwithstanding his rights to possess the gun. So do we.

Alan Gura had filed an amicus brief on behalf of the Second Amendment Foundation and the CalGuns Foundation that argued the District Court got the decision right but for the wrong reasons. It asked the 6th Circuit to affirm the decision but find that the Second Amendment didn’t apply in this case. The appeals court seems to have agreed with this and said the Second Amendment didn’t apply in this situation due to qualified immunity.

Sebastian at Shall Not Be Questioned has much more on the decision here. The Volokh Conspiracy also covers the decision and there is a lively discussion going on in the comments section.

Whether or not Mr. Embody decides to appeal to the Supreme Court is up to him. If he does, I’d wager house money that the Supreme Court would deny certiorari in this case.

Citizens Committee On HB 489

The Citizens Committee for the Right to Keep and Bear Arms just released an alert on North Carolina’s HB 489 and the attempt to overturn the Bateman ruling.

The alert:

BELLEVUE, WA – The Citizens Committee for the Right to Keep and Bear Arms is alerting North Carolina gun owners that state lawmakers are attempting to pass a new “emergency powers” law that may be more restrictive than the one a federal judge just struck down.

House Bill 489, according to Grass Roots North Carolina, would enable cities to restrict firearms rights in the home in emergencies, something they never had the authority to do. Attorney Alan Gura, who represented GRNC and the Second Amendment Foundation in the recently-won federal lawsuit striking down the state’s emergency power to regulate firearms in a declared emergency, says that anyone who tries to enforce a ban on guns under this new legislation would lose qualified immunity.

The legislation, now in the Senate Judiciary I committee, establishes “dangerous weapons restrictions in emergencies.”

CCRKBA Chairman Alan Gottlieb said the new proposal suggests that North Carolina lawmakers responsible for this bill “either simply don’t get it or they are determined to undermine a constitutionally-protected civil right no matter what a judge says.”

“The federal court ruled against this sort of emergency regulation, but the legislature is turning around and trying to pass an even more restrictive law,” he observed.

CCRKBA is urging firearms owners to contact their state senator to oppose the measure.

“Try to adopt bad legislation in an effort to replace a bad law that was struck down by a federal judge is not just bad policy,” Gottlieb said, “it is an egregious abuse of legislative power.”