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.’”
So why did Angela Giron lose in her heavily Democratic, blue collar, union stronghold of a district? According to Dave, it is because she crossed the double-red line of Colorado politics. It wasn’t just that she voted against gun rights but that she, as chairperson of the Senate State Affairs Committee, shut out the testimony of many of those who wanted to testify. Colorado has a tradition of letting everyone who wants to speak on a bill the chance to testify, if only for a few moments.
The Second Amendment right to keep and bear arms was the secondmost important reason why Morse and Giron were removed from office. The first reason was the Fifth and Fourteenth Amendment principle of Due Process of Law. The opportunity to be heard is the fundamental to Due Process of Law, and not solely in adjudications. When Morse and Giron squelched the testimony of law-abiding citizens and of law-enforcing Sheriffs, they grossly abused their constitutional office of being law-makers. And so, for abuse of office, John Morse and Angela Giron have been recalled from office by the People of Colorado, to be replaced by legislators who will listen before the vote.
Read the whole analysis here. It is well worth reading and worth sending to your representatives as a warning of what happens when they won’t even take the time to listen.
54 55 out of the 62 sheriffs in the state of Colorado filed suit in US District Court for the District of Colorado challenging the state’s recently enacted gun control laws. Joining the 54 55 sheriffs were the National Shooting Sports Foundation, Magpul, and a whole number of individuals, gun stores, and organizations.
NEWTOWN, Conn. — The National Shooting Sports Foundation (NSSF), the trade association for the firearms industry, has joined with 54 county sheriffs, Magpul Industries, the Colorado Outfitters Association, several firearms retailers, disabled individuals and other parties in a federal lawsuit brought today in the United States District Court for the District of Colorado in what is a broad-based challenge to Colorado’s recently enacted gun-control laws.
“In addition to Constitutional infringements and unenforceable requirements regarding magazine capacity, as the sheriffs have pointed out, we believe it will be impossible for citizens to comply with mandated firearms ‘transfers’ through federally licensed retailers,” said Lawrence G. Keane, NSSF Senior Vice President and General Counsel. “Colorado’s federally-licensed firearms retailers are being asked to process these transfers as if they were selling from their own inventory and to monitor both seller and buyer through a state-administered check process that can take hours or even days. They will not be able to recoup the actual cost of providing the service, which is capped at $10, but they will be liable for paperwork errors and subject to license revocation. Not surprisingly, we expect few, if any licensed retailers will step forward to provide this service.”
“For this reason and the many others detailed in our joint action with our fellow plaintiffs, these laws need to be struck down,” Keane said.
Colorado Sheriffs to File Suit This Morning Against Colorado Anti-Gun Laws
Photo, Video, and Interview opportunities with plaintiffs, including Sheriffs, Disabled gun owners, Women gun owners
Legal challenge to Colorado’s new anti-gun laws begins in earnest tomorrow morning in Federal Court
Copies of the legal Complaint will be available
Contact Mary MacFarlane, 303-279-6536 x102, firstname.lastname@example.org
Friday morning, May 17, at 10 a.m., Colorado Sheriffs and other plaintiffs will hold a press conference detailing the filing earlier that day of their federal civil rights lawsuit against House Bill 1224 (magazine ban) and 1229 (sales and temporary transfers of firearms).
The press conference will be held at the Independence Institute, 727 East 16th Ave., Denver.
The press conference will have broadcast live on KFKA radio, 1310 AM, Greeley, www.1310kfka.com
A full video will be uploaded to http://www.youtube.com/user/davekopel shortly after the conclusion of the press conference.
Sheriffs are coming from as far away as the Western Slope to participate in the press conference. Also at the press conference will be disabled citizens in wheelchairs, and representatives of Women for Concealed Carry.
After approximately 15 minutes of prepared statements by the Plaintiffs, the Plaintiffs, as well as Sheriffs’ attorney David Kopel, will take questions from the media. There will be photo and video opportunities. Plaintiffs will be available for interviews.
The complaint is not yet up on the District Court’s Pacer site. I’ll post a link when it is available.
Dave Workman has more here as does Michael Bane here.
UPDATE: The complaint that has been filed US District Court for the District of Colorado can be found here. The case is 54 55 Sheriffs et al v. John W. Hickenlooper. The list of plaintiffs in the case runs for two pages!
The case is being brought on 2nd and 14 Amendment grounds as well as under the Americans with Disability Act. They are asking for declaratory and injunctive relief.
While I was in Houston attending the NRA Annual Meeting, I was given a few books by the authors. I will be doing reviews on them as soon as I finish reading them.
The first is by Mike Detty. Mike was an Arizona gun dealer who became intimately involved in an BATFE operation as a confidential informant. That operation was called Operation Wide Receiver and was the predecessor to Operation Fast and Furious. Like Fast and Furious it involved selling firearms to strawmen for the Mexican drug cartels. Also like Operation Fast and Furious, the BATFE lost track of these guns. Mike’s book is entitled Guns Across the Border: How and Why the U.S. Government Smuggled Guns into Mexico: The Inside Story. The book has an introduction and forward by Sharyl Attkisson and David Codrea respectively.
The second books is a short little paperbook by Dave Kopel that is part of the Encounter Broadsides series. It is entitled The Truth About Gun Control. This looks to be one of those books that you’ll buy to hand out to your friends – especially those on the fence about gun control.
“Why put the effort into enforcing a law that is unenforceable?” Cooke told The Denver Post on Monday. “With all of the other crimes that are going on, I don’t have the manpower, the resources or the desire to enforce laws like that.”
Cooke said this is the first time in his law enforcement career that he has made the decision to not enforce a law.
However, Cooke said, if a person who uses a gun outfitted with a magazine able to hold more than 15 rounds in a crime, that person will be charged under the new law.
Both Dave Kopel, a professor at the University of Denver law school, and Richard Collins, a professor at the University of Colorado law school, agree that it is within a sheriff’s prerogative to decide which laws are given priority for enforcement.
From Dave Kopel:
“His primary obligation is to obey the U.S. Constitution and the Colorado Constitution, and he appears to be especially conscientious in making sure he does so,” Kopel said.
While it may be one of the first instances related to gun-control measures, sheriffs in the past have refused to uphold laws they did not agree with, such as prohibition, Jim Crow and immigration, Kopel said.
From Richard Collins:
“He couldn’t be punished for not upholding these laws, but he could be ordered by the court to uphold them,” said Richard Collins, a University of Colorado at Boulder law professor. “Whether anyone would bring a lawsuit to get the court to order him is pretty uncertain.”
Given that Sheriff Cooke is one of the 62 elected (out of 64 total) sheriffs in Colorado, Kopel noted that the primary penalty for noncompliance would be either a recall or to be voted out of office so long as he is faithful to both the US and Colorado constitution.
Of course this just galls the gun prohibitionists in the Colorado legislature.
State Sen. Morgan Carroll, D-Aurora, Senate sponsor of the universal-background-checks bill, said a sheriff unwilling or unable to fulfill the duties of the position should step down.
“They are putting politics above their job,” she said.
Dave Kopel replaced Fordham Prof. Nick Johnson at the Senate Judiciary Committee hearing on gun violence (sic) yesterday. Below is his prepared testimony before the committee. It also includes Dave answering questions from some senators.
Attorney and law professor Dave Kopel was interviewed about the Second Amendment for the Cato Institute Daily Podcast last week. Much of what he says about the presidential power to use executive orders is increasingly relevant given President Obama’s press conference today. In the press conference Obama didn’t rule out the use of executive orders for gun control.
As Kopel points out, Obama would have broad powers to impact imports under the Gun Control Act of 1968 but less power domestically. Kopel does touch upon the reclassification of existing rifles to put them under the purview of the National Firearms Act by the use of executive order.
In an interview with Cam Edwards of NRA News, Second Amendment scholar Dave Kopel analyzes the opinion of the 7th Circuit Court of Appeals in the Moore and Shepard cases.
He makes the point that Judge Richard Posner who wrote the decision is “the furthest thing from a libertarian” and had publicly disagreed with the Supreme Court’s reasoning in the Heller decision. However, Kopel said Posner was very smart and could read what the Supreme Court said (and meant) in that decision. If Posner had been a Supreme Court justice, his opinion might have been different. Since he wasn’t, Kopel said Posner wasn’t going to impose his own views on this case.
Ginny Simone of NRA News interviewed attorney Dave Kopel of the Independence Institute regarding how the 2012 elections impacted the Second Amendment and gun rights. It fleshes out his column from the Volokh Conspiracy and gives more detail.
It will be interesting to see if the Louisiana amendment setting strict scrutiny as the standard is exported to other states. I’d love to see something like that in North Carolina.