Alan Gura

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WaPo Notices Second Amendment Cases

August 15, 2011 by

Robert Barnes, writing in the Washington Post, recognizes that there are a number of Second Amendment cases working their way through the lower courts including two that have been appealed to the Supreme Court. Unfortunately he buys the Brady Campaign’s argument that Second Amendment cases have been continually losing in the lower courts since the Heller and McDonald decisions.

A funny thing has happened in the three years since gun-rights activists won their biggest victory at the Supreme Court.

They’ve been on a losing streak in the lower courts.

Barnes makes reference to the so-called report put out by the Brady Center in July titled “Hollow Victory?” In it, the Brady Center argues that the lower courts have held that “the Second Amendment does not interfere with the people’s right to enact legislation protecting families and communities from gun violence.”

Both Barnes and the Brady Center ignore the 7th Circuit’s decision in Ezell v. City of Chicago which was an unequivocal win for the Second Amendment and which may be the tool needed to get some sort of carry law passed in Illinois.

That said, the article does do a decent job of exploring two cases that might be granted certiorari by the Supreme Court. The cases are a Maryland case challenging a conviction for carrying or transporting with a permit and a Virginia case involving possession of a firearm in a National Park.

The Maryland case – Williams v. Maryland – is brought by Charles Williams who is contesting his 2008 conviction for violating Maryland’s law against wearing, carrying, or transporting a firearm in public without a permit. He was traveling from his girlfriend’s house to his own with a legally purchased gun. However, he does acknowledge that he hadn’t applied for a permit. He is being represented by attorney Stephen Halbrook who contends that the Maryland law is so restrictive that “ordinary people” can’t get the permit. This, he says, clearly violates the Supreme Court’s decisions in Heller and McDonald. This case comes on appeal from the Maryland Court of Appeals which is that state’s highest court.

Meanwhile, in Virginia, Sean Masciandaro was convicted and fined for having a loaded firearm in the trunk of his car on National Park Service property. While this has not been a crime since 2010, it was still prohibited when Mr. Masciandaro pulled off the George Washington Parkway to take a nap rather than fall asleep at the wheel of his car. Unfortunately, the GW Parkway runs through Theodore Roosevelt Island N.P. Moreover, when woken from his nap by park police because he was illegally parked, he answered honestly when asked if he had any more weapons than a knife that was in open view.

Masciandaro appealed his conviction to the 4th Circuit Court of Appeals where it was upheld. He is now appealing to the Supreme Court. According to Supreme Court case filings, he filed an in forma pauperis petition and has been assigned a Federal Public Defender in the case. The Second Amendment Foundation has filed an amicus brief supporting Mr. Masciandaro that was written by Alan Gura.

The article concludes with a brief discussion of the conflicting views about the right to carry for self-defense outside the home.

While the Brady Center trumpets Scalia’s finding that there is no right to “carry any weapon whatsoever in any manner whatsoever and for whatever purpose,” the Second Amendment Foundation takes that as confirmation that “there is a right to carry at least some weapons, in some manner, for some purpose.”

The latter argument is in a brief supporting Masciandaro’s appeal written by Alan Gura, who argued the Heller case. He said the case provides a perfect chance to “clarify” for recalcitrant lower courts that the Second Amendment “applies beyond the threshold of one’s home.”

But if neither Williams nor Masciandaro strikes the court as the right opportunity for the next round of Second Amendment jurisprudence, Gura assures that there are more cases on the way.

Mr. Gura along with the Second Amendment Foundation has done a good job in making sure that many more (good) cases are on the way! And to be fair, the NRA has done its part as well.

– Posted using BlogPress from my iPad

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Is Rahm Afraid Of Alan Gura?

July 2, 2011 by 7 Comments

When the New Chicago Gun Law was passed in 2010, shooting ranges for civilians were banned. This became the basis of the lawsuit brought by the Second Amendment Foundation in Ezell v. Chicago.

Judge Kendell’s denial of a preliminary injunction was appealed by Alan Gura to the 7th Circuit Court of Appeals where it appears quite likely he will win his injunction. When a judge says to you, “Mr. Gura, what would you like your injunction to say”, any reasonable person would take that as a good sign.

Against this background comes a report in the Chicago Sun-Times that Mayor Rahm Emanuel will introduce an ordinance next week to allow shooting ranges in Chicago.

The new ordinance should address the concerns raised in the lawsuit, officials say.

The proposed ordinance limits gun ranges to areas zoned for manufacturing. Outdoor ranges would be banned.

Anyone opening a gun range would have to obtain a gun permit from the city and obtain approval from the Chicago Police Department for a safety plan.

The Court of Appeals has not rendered a decision in this case and, presumably, an ordinance allowing shooting ranges would moot the case. 

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An Area In Which The NRA Excels

June 4, 2011 by

The legislative arena along with the concomitant lobbying is one of the areas in which the National Rifle Association really excels. The embedded letter below is evidence of their success.

The letter to President Barack Obama urges him to stop the stonewalling over Project Gunrunner and Operation Fast and Furious (aka Project Gunwalker). It was spearheaded by Rep. Jason Altmire (D-PA) who was one of the keynote speakers at the recent NRA Annual Meeting in Pittsburgh. The letter is signed by 31Congressional Democrats.

In an ideal world, the NRA would concentrate on training, the legislative arena, and other areas in which being a mass organization really helps and leave the court challenges to the Second Amendment Foundation. While the NRA does have good lawyers, it is the Second Amendment Foundation that has the agility, smarts, and legal expertise in Alan Gura to bring the strategic Second Amendment cases which will get the appellate wins.

Unfortunately, we don’t live in an ideal world. There are some in the NRA’s hierarchy who believe the NRA has to be the be-all and end-all of all things Second Amendment. The result so far has been a number of “me, too” cases, overly broad complaints, and poorly vetted plaintiffs as well as interference in the strategic civil rights litigation of the Second Amendment Foundation. It is time for the adults in the NRA to rein in those who seek organizational glory at the expense of the Second Amendment.

Project Gunrunner Letter to POTUS June 2011(function() { var scribd = document.createElement(“script”); scribd.type = “text/javascript”; scribd.async = true; scribd.src = “http://www.scribd.com/javascripts/embed_code/inject.js”; var s = document.getElementsByTagName(“script”)[0]; s.parentNode.insertBefore(scribd, s); })();

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NRA-ILA Statement On Court’s Decision On Attorneys’ Fees

June 2, 2011 by 3 Comments

Chris Cox, head of the NRA-ILA, released this statement this afternoon regarding the 7th Circuit Court of Appeals decision regarding the awarding of attorneys’ fees in NRA et al v. City of Chicago et al and McDonald et al v. Chicago et al.

Seventh Circuit Court of Appeals Holds NRA Entitled to Attorneys’ Fees in Lawsuits Against Chicago and Oak Park, Illinois

Thursday, June 02, 2011

Fairfax, VA—Today, the U.S. Seventh Circuit Court of Appeals conclusively and forcefully held, without need for oral argument, that the National Rifle Association has the right to recover attorneys’ fees in its lawsuits against the city of Chicago’s and the village of Oak Park’s unconstitutional gun bans. The court held that the NRA was a prevailing party in the case of National Rifle Association v. City of Chicago and Village of Oak Park.

“This is a Second Amendment victory and a civil rights victory. The National Rifle Association and the Second Amendment prevailed against those who sought to deny the right to keep and bear arms in Chicago and Oak Park,” said Chris W. Cox, executive director of NRA’s Institute for Legislative Action. “The attempt to avoid paying the NRA’s attorneys’ fees was rightly found to be unjust by the Court.”

After the U.S. Supreme Court ruled that the Second Amendment guarantees a fundamental right to keep and bear arms for all Americans in the historic McDonald v. Chicago and NRA v. Chicago and Oak Park cases, it remanded them for the purpose of issuing an injunction against Chicago and Oak Park’s unconstitutional gun ordinances. Before that injunction was issued, however, those ordinances were repealed. The City and the Village then argued that the NRA was not a prevailing party and should not be allowed to recover attorneys’ fees. The District Court, which originally ruled against the NRA, agreed and denied the fee award.

Today’s Seventh Circuit decision overturns that ruling, holding instead that the NRA is indeed a prevailing party and is entitled to receive reimbursement for attorneys’ fees. The amount to be recovered will be established by the District Court.

“This is a major victory for the NRA. While we are grateful to recover our attorneys’ fees, however, we remain steadfast in our belief that Chicago and Oak Park continue to circumvent the law of the land and deny their law-abiding residents the Second Amendment freedoms protected by the Constitution. We will continue to fight those efforts until the Second Amendment is fully respected,” concluded Cox.

I see Mr. Cox still has a problem saying the name of the attorney who won the case actually heard in the Supreme Court as well as the Heller case. Let me say it for him – AH-lin Grrr-AH.

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Heh! Chicago Has To Pay Up.

June 2, 2011 by 1 Comment

After the City of Chicago lost McDonald et al v. City of Chicago et al in the Supreme Court, they changed their gun ban ordinances. Because of this, they argued that the plaintiffs were not “prevailing parties” and thus weren’t entitled to attorneys’ fees. U.S. District Court Judge Milton Shadur agreed with them and denied Alan Gura and the attorneys for the National Rifle Association the attorneys’ fees that should have been due them.

Today, the 7th Circuit Court of Appeals issued a decision overturning Judge Shadur and ordering “reasonable attorneys’ fees under §1988.” This decision applied both to the McDonald case and the cases brought by the NRA against the City of  Chicago and the Village of Oak Park, Illinois.

The Court of Appeals noted that Judge Shadur was correct in that the plaintiffs didn’t receive a favorable judgment from the District Court. However, they continued:

But they did better: They won in the Supreme Court, which entered a judgment in their favor. When the Supreme Court rendered its decision, the controversy was live.

The Court goes on to add noting that Chicago and Oak Park changed their ordinances in response to the Supreme Court’s McDonald decision:

Many a defendant gives up after a district court’s final decision and does not appeal; some other parties settle to avoid the risk of reversal. If a cessation of hostilities after a district court’s decision does not deprive the victor of prevailing party status, why should conceding defeat after a decision by the Supreme Court do so?

The attorneys for Chicago and Oak Park argued that the decision in McDonald only addressed a “preliminary legal issue” and didn’t resolve the plaintiff’s claims against the municipalities. Chief Judge Frank Easterbrook writing for the Court of Appeals didn’t think much of that argument.

After the Supreme Court held that the second amendment applies to the municipalities’ ordinances, defendants’ position was untenable; neither Chicago nor Oak Park contends that the ordinance in force in 2008 could have been sustained under Heller’s substantive standards. This litigation was over except for the entry of an injunction by the district court. Chicago and Oak Park capitulated, which made the exercise unnecessary. By the time defendants bowed to the inevitable, plaintiffs had in hand a judgment of the Supreme Court that gave them everything they needed. If a favorable decision of the Supreme Court does not count as “the necessary judicial imprimatur” on the plaintiffs’ position (Buckhannon, 532 U.S. at 605), what would?

According to his Twitter feed, Alan Gura just happened to be in Chicago today. He notes it is a beautiful day. Indeed it is and it is good to see that the City of Chicago is going to have to shell out the big bucks for their obstinacy as well they should.

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Quote Of The Day

June 2, 2011 by

From the amicus brief submitted to the 9th Circuit Court of Appeals in Peruta v. County of San Diego by the Second Amendment Foundation and the CalGuns Foundation.

An official’s personal views of someone’s suitability to enjoy constitutional rights, or of an individual’s moral virtue, simply cannot be factors in regulating the exercise of constitutional rights.

This was written by Alan Gura in response to the requirements of California Penal Code Section 12050 which states that an applicant for a concealed carry permit must show “good cause” and be of “good moral character”.

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Time For DC To Pay Up

December 16, 2010 by 9 Comments

Not only did Alan Gura have to fight the District of Columbia over the Second Amendment, now he is having to fight them in an effort to get paid for his efforts in the Heller case. The Legal Times Blog is reporting that the District of Columbia is balking over the bill submitted to the District Court by Gura. Basing his bill for fees on the prevailing market rates for complex Federal litigation, he submitted a request for $3.13 million to Judge Emmet Sullivan. This was for over 3,000 hours of billable time for six attorneys including himself.

The District has countered that they should only have to pay $722,000.

Samuel Kaplan of the District’s Office of the Attorney General argued the plaintiffs’ team had failed to prove why they should receive compensation on par with major law firms in the District. Kaplan called the gun litigation complicated but not complex, a term he reserved for class actions.

Kaplan said Gura’s team did not build the case from scratch, relying instead on what he called decades of scholarly literature on the Second Amendment.

It takes a lot of gall to say the premier case establishing the Second Amendment as an individual right is merely complicated but not complex which is a designation that the District’s attorneys reserve for the cases brought by the bottom-dwelling plaintiff’s attorneys for stuff like cigarette smoking and exposure to asbestos.

Judge Sullivan, according to this account, questioned whether he should take the District’s finances into account when considering Gura’s bill and how much he should be paid from the taxpayer’s money. Gura countered,

telling Sullivan he (Gura) should not be (in) a position that requires him to assess the city’s budget priorities. Sullivan should base his fee ruling on an objective analysis of market rates and performance, Gura said.

My humble suggestion to Judge Sullivan is that if he doesn’t want to use taxpayer money to pay Mr. Gura he should take it out of the assets and retirements of the so-called public officials who passed the handgun ban in the first place as well as those like former Mayor Adrian Fenty who kept enforcing the unconstitutional ban.

The bottom line is that it is well past time for the District of Columbia to stop being cheap bastards. You lost and we won. Now pay up.

UPDATE:  After Mark C. made the comment below, I looked up Alan Gura’s motion for fees. You can find it here. It is brought under 42 USC 1988 as he surmised. If you want to know about the history of the Heller case, it is worth reading the few first pages.

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Alan Gura on Strategic Civil Rights Litigation

October 24, 2010 by 1 Comment

This is a speech that Alan Gura gave at the Grass Roots North Carolina Gala for Gun Rights. The event was held in Charlotte, NC on Friday, May 14th. It was held concurrently with the NRA Annual Meeting.

I was in attendance at this dinner. I learned more about the entire process of carefully selecting litigants and cases in those 15 minutes than I had ever before.

To put this into perspective, I took two semesters of Constitutional Law as an undergraduate from a professor who lived and breathed the constitution. I also spent 3 1/2 years in a PhD program in Political Science at UNC-Chapel Hill before leaving with a wife but no degree. It is one thing to learn about the courts and the Constitution in a classroom. It is an entirely different thing to hear the inside story of the process from a lawyer who has argued – and won – two major precedent setting cases before the Supreme Court.

If you want to learn how pro-gun civil rights litigation should be done, take a few minutes and listen to this YouTube video.

H/T Gene Hoffman