post-McDonald gun laws

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Post-McDonald Litigation Updates

August 16, 2010 by 9 Comments

After the initial flurry of lawsuits being filed after the McDonald v. Chicago decision, there was a quiet period while we waited for responses by the defendant states and municipalities. Some of the firsts responses are starting to come in.

Bateman et al v. Perdue et al

This was the first of the post-McDonald cases filed. It directly challenged North Carolina’s “emergency powers” act which imposed restrictions on the sale of firearms and ammunition during a declared emergency as well as forbidding the possession of a firearms outside of a person’s residence.

On Wednesday of last week, Stokes County filed a motion to dismiss the case against them. In effect, they said they’d never banned firearms in their ordinances or proclamations and that they were not responsible for state law.

Then, on Friday, the State of North Carolina moved to dismiss the cases against Governor Perdue and Secretary of Crime Control and Public Safety Reuben Young. They are basing their claim on “Plaintiffs’ failure to state a claim upon which relief can be granted and lack of subject matter jurisdiction.” They submitted 89 pages of exhibits with their motion.

Given the extensive nature of the exhibits, I will post a separate analysis of this later.

Benson et al v. City of Chicago et al

This is the suit brought by the National Rifle Association challenging the new Chicago gun laws that were enacted within days of the McDonald decision. The NRA has filed an amended complaint in this case as of August 13th.

I will post a comparison of the original complaint and the amended complaint as soon as I can.

Owner-Operator Independent Drivers Association et al v. Lindley

This is one of the cases being brought in the State of California challenging AB 962, the Handgun Ammunition Sales Law. O-OIDA brought this suit on, among other grounds, that the new law violates the FAA Act of 1994.

All parties in the case have stipulated that that State of California has an additional 28 days in which to file a response to this complaint. This gives California until September 17th in which to file an answer.

Baker v. Biaggi et al

This is the case in which the State of Nevada State Parks are being sued by the Mountain States Legal Foundation over the issue of possession of firearms for self-protection. It seeks to have a tent declared a temporary residence in which a person would be permitted to have a firearm.

The Nevada Attorney General’s office has filed an Answer on behalf of three of the five defendants. Their Answer includes David Morrow, Administrator of Nevada State Parks; Eric Johnson, Nevada State Parks Fallon Regional Manager; and Andrew Bass, Park Supervisor I, Wild Horse State Recreation Area. Excluded in the Answer are Allen Biaggi, Director of the Nevada Dept. of Conservation and Natural Resources, and Allen Newberry, Chief of Operations and Maintenance.

After an Answer has been received on behalf of the latter two, I will do an update on this case.

Mishaga v. Monken

This is a new case that has flown under the radar. It was filed at the end of July by the Mountain States Legal Foundation on behalf of Ellen Mishaga, an Ohio resident, against the head of the Illinois State Police for denying her a Firearms Owner Identification (FOID) card. Mrs. Mishaga contends that as a frequent visitor to the State of Illinois she is precluded under Illinois law from possessing a firearm for self-defense in a residence because she doesn’t have a FOID card. The only exceptions to the requirement to possess a FOID card are those there to attend a shooting competition or those who possess an Illinois non-resident hunting license. Neither of these exceptions applied to her. Accordingly, she applied for a FOID card and was denied twice because she doesn’t have an Illinois driver’s license or state ID card – both of which she is not eligible to possess.

I will have a more extensive and separate post on this case soon.

This case is being brought in U.S. District Court for the Central District of Illinois.

UPDATE: Welcome Instapundit readers!

The comparison of the original and amended complaint in Benson et al v. Chicago et al can be found here.

The post on Mishaga v. Monken, the case by an Ohio resident challenging Illinois’s FOID Card, is found here.

I am still working on the post about the motions to dismiss in the first post-McDonald case – Bateman et al v. Perdue et al.

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Another Chicago Lawsuit

July 10, 2010 by

When it rains, it pours. At least that is the way it must seem if you are Hizzoner Mayor Richard Daley. On the heels of Benson et al v. Chicago – the lawsuit the NRA and the Illinois Association of Firearms Retailers is bringing – comes another case, Second Amendment Arms et al v. Chicago.

According to the Chicago Sun-Times and court filings, Joseph Franzese, owner of Second Amendment Arms, and Robert Zieman have filed suit in the US District Court against the City of Chicago, Mayor Daley, and other Chicago officials. Second Amendment Arms is seeking to open guns stores in Lincoln Park and on Michigan Avenue while Mr. Zieman is seeking restitution for handguns confiscated under the 1982 handgun ban ordinance. Second Amendment Arms has filed applications for both of these stores with the City Clerk’s Office.

Franzese wants to open “boutique” type gun stores in Lincoln Park and on Michigan Avenue downtown, according to his lawyer Walter Maksym, one of Drew Peterson’s lawyers in his pending murder case.

“It’s not going to have firearms [on display] or bullets [for sale], and you’ll have to have an FOID card to get in,” Maksym said. “There would be a secure area and after you look at some videos, you can pick out a gun you are interested in and a security guard will bring it in to view.”

Maksym noted you would need an FOID card to see and handle and guns. You would then order the gun and come back to get it later after a background check is conducted.

Here is where it gets interesting. Not only is Mr. Zieman seeking restitution for his confiscated handguns but he indicates that he will seek class action status for the lawsuit as well as restitution on behalf of all other Chicago gun owners who had handguns confiscated under the old law.

The lawsuit is being brought under the 1st, 2nd, 4th, and 14th Amendments of the US Constitution as well as relevant sections of the Illinois Constitution.

You can read the full complaint here.

UPDATE: The Chicago Tribune ran a story today on the Second Amendment Arms lawsuit. Various law professors and other lawyers are quoted concluding that the new law may not be “bullet proof”.

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Chicago City Council Approves New Gun Laws

July 2, 2010 by

Following their defeat in McDonald v. Chicago, Mayor Daley and the Chicago City Council went back to the drawing board. They approved the new law by a vote of 45-0 this morning.

According to the Chicago Tribune the provisions include:

*Applicants would need a Chicago firearm permit, costing $100 every three years, as well as an Illinois firearm owner’s ID card. They would be required to register all their guns with the city, at a cost of $15 per gun every three years.

*Firearm sales would be banned in the city.

*Chicago residents could register no more than one handgun per month for each qualifying adult in a home.

*People who now own firearms illegally would get a 90-day grace period after the new law takes effect to register the guns without penalty.

*Gun training totaling four hours in a classroom and an hour on a firing range is required before getting a permit. But firing ranges are banned, so training would need to be completed outside Chicago.

*To transport a gun, it would have to be “broken down,” not immediately accessible, unloaded and in a firearm case.

* Firearms could be possessed only inside the dwelling. It would be illegal to have a gun in the garage, on the front porch or in the yard. Guns also would not be allowed in hotels, dorms and group living facilities.

*Only one firearm per permit holder can be kept in ready-to-fire condition. Other guns must be taken apart or have trigger locks in place. In homes with minors, all guns must be secured when they are not in the possession of the owner.

*Permit applicants must be at least 21 years old, unless a parent signs for someone 18 or older.

*Assault weapons are banned, as are sawed-off shotguns and “unsafe” handguns, as defined by the Chicago Police Department, which will maintain an online list of prohibited guns.

Alderman James Balcer is quoted as saying about the restrictions, that “You can buy one pistol a month. What is wrong with that? If you can’t protect your home with that armament, you shouldn’t be here. You shouldn’t be here.” After working that hard to keep the good people of Chicago disarmed for so long while crime ran rampant, perhap it is Alderman Balcer who shouldn’t be there.

UPDATE: Alan Gura gives his impressions of the new Chicago handgun laws.