Eugene Volokh

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Another One Down Thanks To The Firearms Policy Coalition

June 29, 2017 by

The City of Tacoma, Washington repealed their ban on the sale, use, and possession of “electronic arms”. This means that stun guns and, presumably, Tasers will now be legal to possess and use for self defense in that city. As legal scholar Eugene Volokh notes, this is just one of many repeals in recent months. The legal reason can be traced back to the Supreme Court’s decision in Caetano v. Massachusetts which found that stun guns were indeed covered by the Second Amendment.

Most of these cities would not have dropped their bans were it not for the Firearms Policy Coalition and their attorney Stephen Stamboulieh. They have been working their way through a list of municipalities with these sort of restrictions and have threatened lawsuits if the bans were not dropped. Mr. Stamboulieh, you may remember, was (unfortunately) an unsuccessful candidate for the NRA Board of Directors this year.

The FPC released the following on their win yesterday:

SACRAMENTO, CA (June 27, 2017) — Firearms Policy Coalition (FPC) today applauded the unanimous repeal of Tacoma Washington’s ban on the sale, use, and possession of electronic arms.

Attorneys for FPC sent a letter to the Tacoma City Council on April 10, which warned that the group was ready and willing to sue based on solid case law if the city refused to repeal the ban.

Said FPC attorney Stephen Stambouleih, “As the Supreme Court noted in Caetano v. Massachusetts it “has held that ‘the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.’”

As the latest municipality to repeal a ban, Tacoma was one of only a handful of municipalities nation-wide which still had an outright ban on possession and defensive use of electronic stun guns.

“The City of Tacoma did the right thing here,” said FPC President Brandon Combs. “Our staff and attorneys are already reviewing regulations in other cities and states for legal violations. By no means is our work done yet.”

“I think it’s obvious the city knew they would lose any court challenge and they wisely chose to repeal this law,” said Philip Watson, FPC’s Northwest region lobbyist and spokesperson. “We’re not done taking on bans on arms protected by the Second Amendment.”

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Now For Some Good News Out Of California

June 10, 2016 by 4 Comments

It seems like all the news coming out of California today was uniformly bad. However, there is one bright spot. As I reported two weeks ago, two firearms groups plus a number of individual plaintiffs sued for a restraining order against the California law that bans the use of the video feed from the California legislature for political purposes. UCLA Law Professor Eugene Volokh is one of the attorneys for the plaintiffs and he wrote about the case at this morning on the Washington Post’s Volokh Conspiracy blog.

As Firearms Policy Coalition reported a few hours ago on Facebook, US District Court Judge Morrison England has granted the request for a preliminary injunction against enforcement of Cal. Gov. Code § 9026.5. Professor Volokh also has confirmed that in a short post as well.

This is a win for the First Amendment and the Second Amendment. The Firearms Policy Coalition Second Amendment Defense Committee and others can now use video from the legislature in ads opposing Lt. Gov. Gavin Newsom’s gun control initiative.

UPDATE: Gene Hoffman of CalGuns Foundation just pointed out something that I missed. The same Judge Morrison England who ruled for the FPCSADC on First Amendment grounds was the same Judge England whose decision against concealed carry in the Richards case was upheld in today’s ruling from the 9th Circuit. How ironic.

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First Amendment Lawsuit With Second Amendment Implications In California

May 27, 2016 by 1 Comment

Two Second Amendment groups and three individual plaintiffs including a Congressional candidate have filed suit against California Attorney General Kamala Harris. The suit filed in US District Court for the Eastern District of California seeks an injunction against a California law that makes it illegal to use video footage from the California State Assembly in a political campaign or ballot initiative. The suit is brought on First Amendment grounds as the law restricts political speech. The plaintiffs would have used video footage from the State Assembly to produce ads opposing Lt. Gov. Gavin Newsom’s gun control ballot initiative and the gun control bills being rammed through the legislature.

One of the individual plaintiffs is filmmaker Kris Koenig who produced the Second Amendment documentary Assaulted: Civil Rights Under Fire.

An interesting note about the lawsuit is that UCLA law professor Eugene Volokh who blogs at the Washington Post’s Volokh Conspiracy is one of the attorneys representing the plaintiffs.

A copy of the complaint can be found here.

A release with more details on the case and the plaintiffs is below.

SACRAMENTO­­­­­­ – Today, two civil rights groups opposing Gavin Newsom’s gun control ballot initiative were joined by two Emmy Award-winning filmmakers, a San Diego-based civil rights activist, and a candidate for Congress in filing a new First Amendment lawsuit challenging the State of California’s ban on using Assembly video footage for political speech.

The complaint, filed in the Eastern District of California federal court, states that California Government Code section 9026.5 prohibits the use of the public video feed from the California State Assembly “for any political or commercial purpose, including . . . any campaign for elective public office or any campaign supporting or opposing a ballot proposition submitted to the electors.”

Tim Donnelly, a plaintiff in the case who is currently running for Congress, was previously threatened by the Assembly Rules Committee for using a clip of a hearing in which he participated as an elected Assembly member.

Violating the statute is a misdemeanor crime that can lead to imprisonment in a county jail for up to six months, a fine of up to one thousand dollars, or both imprisonment and fine. Because of the importance of political speech and the criminal liability under the statute, the plaintiffs say they’ll be asking the court to issue a restraining order against the law.

“Millions of good, law-abiding people are at risk of becoming criminals through dozens of new gun control bills and the most dangerous, anti-civil rights ballot initiative we’ve seen in decades,” explained Firearms Policy Coalition Second Amendment Defense Committee Chairman Brandon Combs. “Yet Section 9026.5 says it would be a crime for us to use video of the people’s Assembly hearings and votes in political speech. It is shocking that this law was ever passed in a state that claims to value diversity, tolerance, free speech, and open government.

“This blatantly unconstitutional statute should be opposed by people across the political spectrum.”

“Assembly Speaker Anthony Rendon and Senate President Kevin de León are playing fast and loose with legislative rules, but California law says that it’s a crime for us to use Assembly video to oppose their extreme agenda. We filed this lawsuit because we’re not going to stand by and watch while Senator de León and Gavin Newsom compete to burn the Bill of Rights to the ground first,” concluded Combs.

The plaintiffs are represented by Bradley Benbrook and Stephen Duvernay of Benbrook Law Group, PC, and Eugene Volokh, a UCLA law professor who has written and taught extensively about the First and Second Amendments. Before joining the UCLA faculty, Volokh clerked for Judge Alex Kozinski of the Ninth Circuit Court of Appeals and Justice Sandra Day O’Connor of the U.S. Supreme Court. He also operates the popular legal blog “The Volokh Conspiracy,” now hosted at the Washington Post.

A copy of the complaint for Firearms Policy Coalition Second Amendment Defense Committee, et al. v. Attorney General Kamala Harris can be viewed or downloaded at www.fpcsadc.org/wp-content/uploads/2016/05/2016-05-26-Complaint-filed.pdf.

Firearms Policy Coalition Second Amendment Defense Committee (FPCSADC) is the official pro-gun grassroots political action committee (PAC) dedicated to opposing Gavin Newsom’s gun control ballot initiative. FPCSADC was formed days after Newsom announced his intention to put his gun control scheme on the November 2016 ballot and has been fighting against the initiative since its inception. More information about FPCSADC can be found at www.StopNewsom.com.

Firearms Policy Coalition (FPC) is a grassroots, nonprofit public benefit organization. FPC’s mission is to protect and defend the Constitution of the United States, especially the fundamental, individual Second Amendment right to keep and bear arms. More information about FPC can be found at www.firearmspolicy.org.

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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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California Gun Shops Suing Over First Amendment Violations

November 11, 2014 by

Four gun shops in California are suing California Attorney General Kamala Harris over a state law that prevents them from advertising handguns for sale. Penal Code Section 26820 which dates back to 1923 prohibits dealers from saying they have handguns for sale on their buildings. This includes even having a picture or drawing of a handgun posted where it can be seen from the street.

The suit, Tracy Rifle and Pistol et al v. Kamala Harris et al, alleges that the California law is a violation of the First Amendment rights of the gun shops and their owners. The complaint notes that handguns are lawful items and that the “First Amendment protects the dissemination of truthful, nonmisleading commercial information about lawful products”.

The attorneys for the plaintiffs are Stephen Duvernay of the Benbrook Law Group and Prof. Eugene Volokh of the UCLA School of Law. Prof. Volokh also runs the well-known legal blog The Volokh Conspiracy.

The lawsuit is being supported by the California Association of FFLs, the CalGuns Foundation, and the Second Amendment Foundation.

The release about the case from the Firearm Policy Coalition is below:

November 10, 2014 (SACRAMENTO, CA) — Four California gun dealers are filing a federal lawsuit today against California Attorney General Kamala Harris over what they say is a violation of their First Amendment civil rights. Stephen Lindley, who heads the DOJ’s Bureau of Firearms, is named as a co-defendant in the case.


Tracy Rifle and Pistol, a firearm retailer and indoor shooting range located in San Joaquin County, was recently cited by Harris’ Department of Justice for having pictures of three handguns in window signs that can be seen outside the store. California Penal Code section 26820, first enacted in 1923, bans gun stores from putting up signs advertising the sale of handguns — but not shotguns or rifles. An adjacent window image at Tracy Rifle, which shows a photograph of an AR-15 rifle, was not cited by the DOJ.


“I run one of the most heavily regulated and inspected businesses in existence, but it’s still illegal for me to show customers that I sell handguns until after they walk in the door,” explained Michael Baryla, the owner of Tracy Rifle & Pistol. “That’s about as silly a law as you could imagine, even here in California.”


While California gun dealers cannot display even the word ‘handgun’ at their stores to passersby, adjacent businesses and anti-gun protesters are not prohibited from doing as much. The court filings argue that the law operates as unconstitutional speaker, content, and viewpoint-based discrimination, in addition to having other legal problems.


Similar statutes banning handgun displays can be found in places like Pennsylvania, Texas, and Washington, D.C., but the California Department of Justice appears to be the only state agency enforcing provisions like the challenged ban.


The lawsuit claims that this restriction violates gun stores’ First Amendment rights, by severely restricting truthful, non-misleading commercial speech. Lead counsel Bradley Benbrook said about the lawsuit, “The First Amendment prevents the government from telling businesses it disfavors that they can’t engage in truthful advertising. This case follows a long line of Supreme Court cases protecting such disfavored businesses from that type of censorship.”


Though the case doesn’t claim a Second Amendment violation, plaintiffs do argue that commercial advertisement of constitutionally protected products and services — whether abortion, contraceptives, or guns — is especially clearly protected under the First Amendment.


The plaintiffs are also represented by Benbrook’s colleague Stephen Duvernay and Eugene Volokh, a UCLA law professor who has written and taught extensively about the First and Second Amendments. Before joining the UCLA faculty 20 years ago, Volokh clerked for Judge Alex Kozinski of the Ninth Circuit Court of Appeals and Justice Sandra Day O’Connor of the U.S. Supreme Court. He also operates the popular legal blog “The Volokh Conspiracy,” now hosted at the Washington Post.


California Association of Federal Firearms Licensees, the state’s firearm industry association, joined gun rights groups The Calguns Foundation and Second Amendment Foundation in support of the case.


The lawsuit’s other plaintiffs include Sacramento Black Rifle of Rocklin, Ten Percent Firearms of Taft, and PRK Arms, a Fresno-based dealer that operates a chain of three stores in California’s Central San Joaquin Valley, as well as business owners Robert Adams, Wesley Morris, and Jeffrey Mullen, respectively.


A copy of the complaint can be viewed at http://www.calgunsfoundation.org/litigation/trap-v-harris.

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100 Most Influential Lawyers In America

March 25, 2013 by

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.