An Update In The Mishaga Case

The Mishaga case (originally Mishaga v. Monken but now Mishaga v. Grau et al) is a challenge to the State of Illinois’ restrictions as to who may have a Firearms Owner ID (FOID) card. The case involves a resident of Ohio who often visits friends in Illinois and wants to be legally armed in their home while there for self-protection. The convoluted nature of Illinois firearms law makes it both illegal for her to be armed without a FOID card and for her to obtain a FOID card.

The case was brought in the US District Court for the Central District of Illinois back in July 2010 by the Mountain States Legal Foundation on behalf of Ellen Mishaga. After a flurry of activity in the case in late 2010 and in 2011, the case has lain dormant despite being fully briefed. This past Friday attorney Jim Manley who represents Ms. Mishaga filed a Plaintiff’s Second Notice of Supplemental Authority.

This notice makes reference to the recently passed HB 183 which now provides for concealed carry permits in Illinois for both residents and non-residents. The possession of a FOID card is not required for a non-resident to obtain a non-resident concealed carry permit.

Defendents’ argument that there is substantial reason to discriminate against nonresidents who apply for a FOID is eviscerated by this statutory change. See Pl’s Mot. for Summ. J. at 15-18. There is no rational justification for issuing a permit to “carry a loaded…concealed firearm,” to nonresidents, 430 ILCS 66/10(c), yet at the same time deny nonresidents a FOID – and thereby deny the right to possess a functional firearm only in a home. Accordingly, the de facto residency requirement imposed by 430 ILCS 65/4(a-5) and the explicit residency requirement at 430 ILCS 65/4(a)(2)(xiv) and 430 ILCS 65/8(q) are unconstitutional.

The Second Notice concludes that the FOID Act residency requirement is a “fixed harm” that inflicts “irreparable injury.

The passage of HB 183 may be the catalyst to finally move this case to a favorable conclusion. After all this time, one could only hope so.

Bonidy v. USPS – A Win In Colorado

Judge Richard Matsch of the US District Court for the District of Colorado has ordered the US Postal Service to take all steps necessary to allow Tab Bonidy to park in the post office parking lot in Avon with a firearm in his car. This case, Bonidy et al v. USPS et al, has been through many twists and turns since it was first started in late 2010. The case was brought by attorney Jim Manley and the Mountain States Legal Foundation on behalf of Mr. Bonidy and the National Association for Gun Rights.

While this case was originally dismissed in 2011, Judge Matsch gave the plaintiffs leave to file an amended petition in April 2011. They did and this win is a result of that.

Judge Matsch in his Memorandum Opinion and Order concluded:

In sum, openly carrying a firearm outside the home is a liberty protected by the
Second Amendment. The Avon Post Office Building is a sensitive place and the ban
imposed by the USPS Regulation is a presumptively valid restriction of that liberty. The
Plaintiff has failed to present evidence to rebut that presumption. The parking lot adjacent to
the building is not a sensitive place and the Defendants have failed to show that an absolute
ban on firearms is substantially related to their important public safety objective. The public
interest in safety and Mr. Bonidy’s liberty can be accommodated by modifying the
Regulation to permit Mr. Bonidy to “have ready access to essential postal services” provided
by the Avon Post Office while also exercising his right to self-defense. Accordingly, it is

ORDERED, that the Defendants take such action as is necessary to permit Tab
Bonidy to use the public parking lot adjacent to the Avon Post Office Building with a firearm
authorized by his Concealed Carry Permit secured in his car in a reasonably prescribed
manner, and it is

FURTHER ORDERED, that the other claims of unconstitutionality of 39 C.F.R. §
232.1(l) made by Plaintiffs are denied.

Thus, while the Post Office is considered a sensitive place under the Heller dicta, the parking lot is not.

 The Mountain States Legal Foundation, as one might expect, is quite pleased with the result as well they should be.

DENVER, CO. A Colorado federal district court ruled today in favor of a Colorado man and a national gun rights group holding that a U.S. Postal Service regulation barring firearms in its parking lots violates their right to keep and bear arms under the Constitution. The district court ruled, “openly carrying a firearm outside the home is a liberty protected by the Second Amendment [and the] parking lot adjacent to [Avon’s Post Office Building] is not a sensitive place [such that] an absolute ban on firearms is substantially related to [Defendants’] important public safety objective.” Tab Bonidy, who is licensed to carry a handgun and regularly carries a handgun for self-defense, drives several miles from his home, where mail delivery is not available, to Avon to collect his mail. On arrival in Avon, however, he is barred by federal regulation from carrying a firearm, or parking his vehicle if it contains a firearm, on Postal Service land. In July 2010, Mr. Bonidy asked that the regulation be withdrawn; the Postal Service refused. Mr. Bonidy and the National Association for Gun Rights filed their lawsuit in October 2010.

“We are pleased the court struck down the Postal Service’s regulation as it applies to the Avon parking lot,” said William Perry Pendley of Mountain States Legal Foundation (MSLF); MSLF represents Mr. Bonidy and the group.

In 2007, the Postal Service renewed its total ban on firearms on Postal Service property, first promulgated in 1972:

“Notwithstanding the provisions of any other law, rule or regulation, no person while on Postal property may carry firearms, other dangerous or deadly weapons, or explosives, either openly or concealed, or store the same on Postal property, except for official purposes.”

39 C.F.R. § 232.1(l). This regulatory prohibition, which carries a fine, imprisonment for 30 days, or both, is broader than the federal statute, which prohibits private possession of firearms in federal facilities, except those firearms carried “incident to hunting or other lawful purposes.” 18 U.S.C. § 930(d)(3). This statutory exception does not apply in federal court facilities, where a total ban is enforced. 18 U.S.C. § 930(e)(1).

The Postal Service’s total ban on firearms possession impairs the right to keep and bear arms as protected by the Second Amendment even when individuals are traveling to, from, or through Postal property because the Postal Service does not allow people to store a firearm safely in their vehicles. Anyone with a hunting rifle or shotgun in his car, or a handgun in his glove compartment for self-defense, violates the Postal Service ban by driving onto Postal Service property. Thus, the ban also denies the right to keep and bear arms everywhere a law-abiding gun owner travels before and after visiting Postal Service property.

Jim Manley On The Win For Campus Carry In Colorado

Jim Manley of the Mountain States Legal Foundation was interviewed on Monday by Cam Edwards about the Colorado Supreme Court decision in favor of campus carry. In that decision, the court said that the ban on concealed carry at the University of Colorado violated the state’s Concealed Carry Act.

I think Jim made a very good point regarding campus carry in Colorado when he said that they have had almost ten years of experience with it at Colorado State University and have had no problems. That is something the gun prohibitionists don’t want you to know.