Second Amendment Foundation

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2017 Gun Rights Policy Conference Agenda

September 27, 2017 by 5 Comments

The agenda for the 2017 Gun Rights Policy Conference which starts on Friday evening in Dallas was announced yesterday. I am honored to be asked to speak again on the use of new media to promote gun rights. Paul Lathrop, host of the Polite Society Podcast, will also be on the same panel with me. Our fellow co-host Rachel Malone who is now the operations director of the Republican Party of Texas will be speaking on women in the gun rights movement.

You can find the full agenda here.

As a reminder, it is FREE to attend the Gun Rights Policy Conference and you come home with a stack of books and a ton of knowledge. So if you will be in the neighborhood of the Westin Dallas Fort Worth Airport, take advantage of it.

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Appeal To The Supreme Court Filed In The Silvester Case

September 5, 2017 by 1 Comment

Silvester et al v. Becerra (formerly v. Harris) is a California case that involves a challenge to the 10-day waiting period for those individuals in classes where a waiting or cooling off period makes no rational sense. It was a win at the US District Court level. However, the 9th Circuit bizarrely ruled – but I repeat myself – that even those who owned a firearm and who held a concealed carry permit from California needed that cooling off period.

The Calguns Foundation, the Second Amendment Foundation, Jeff Silvester, and Brandon Combs are the plaintiffs in this case. This past Friday, they have appealed to the US Supreme Court for a writ of certiorari. Their petition can be found here.

More on the case in the Calguns Foundation’s release:

WASHINGTON, D.C. (September 1, 2017)­­­­­­ – Today, two individuals and two Second Amendment civil rights advocacy groups filed a petition for certiorari in the case of Silvester, et al. v. California Attorney General Xavier Becerra asking the United States Supreme Court to review and overturn a wrongly-decided Ninth Circuit decision about the State of California’s 10-day waiting period laws, noted The Calguns Foundation, one of the petitioners.

A copy of the petition to the Supreme Court and other relevant case documents can be viewed or downloaded at https://www.calgunsfoundation.org/silvester.

In 2014, Federal District Court Judge Anthony W. Ishii—nominated to the bench by then-President Clinton—held that the waiting period laws were unconstitutional as applied to three categories of gun purchasers after undertaking significant discovery, depositions, and a three-day bench trial.

But in 2016, the United States Court of Appeals for the Ninth Circuit bizarrely ruled that even a person legally carrying a concealed handgun as he buys another gun at retail, and who passes a further background check, needs to be “cooled off” for another 10 days before exercising his Second Amendment rights and taking possession of a constitutionally-protected firearm.

“I passed a rigorous state and federal background check and have a license to carry a handgun in public throughout the State of California,” explained individual plaintiff Jeffrey Silvester, an insurance broker in Hanford, California. “The DOJ knows that I am a law-abiding person, and I’m even in their Rap Back system. What possible reason does the State have in denying me my Second Amendment right to take possession of a firearm after I pass yet another background check?”

The petition, authored by Supreme Court and appellate attorney Erik. S. Jaffe of Washington, D.C., noted that it “is no secret that various lower courts, and the Ninth Circuit especially, are engaged in systematic resistance to” the Court’s landmark Heller and McDonald decisions. In doing so, the petitioners argue, the Ninth Circuit ignored important legal rules that govern how infringements on constitutional rights are to be scrutinized and that govern review of a trial court determinations of the facts in a case. Petitioners maintain that the Ninth Circuit’s decision represents one of the clearest example yet of open circumvention of Second Amendment rights, when even the results of a trial cannot survive the hostile appellate review often applied in Second Amendment cases.

The petition notes that the lax legal standard applied by the Ninth Circuit in this case conflicts with the more protective legal standard applied by the Supreme Court, “poses a threat not merely to Second Amendment rights, but to First and Fourteenth Amendment rights as well, and that review should be granted “to correct that conflict” and enforce the proper standard of constitutional scrutiny of laws that burden Second Amendment rights.

Brandon Combs, an individual plaintiff in the case as well as the executive director of organizational plaintiff The Calguns Foundation, believes that fundamental, individual Second Amendment rights are being treated like second-class rights.

“In its decision to ignore the trial court’s Findings of Fact and Conclusions of Law as well as longstanding principles of appellate review,” said Combs, “the Ninth Circuit has made it crystal clear that it has no intention of following the Supreme Court’s precedents no matter how unconstitutional, arbitrary, or irrational the law. This case and the Ninth Circuit’s treatment of fundamental rights are beyond ripe for review.”

“We are hopeful that the Supreme Court will use t

he extensive record here to further develop its Second Amendment precedent and place the right to keep and bear arms on an equal footing with First Amendment rights, such as freedom of speech.”

Silvester, Combs, and The Calguns Foundation are joined in the petition by Second Amendment Foundation of Bellevue, WA, which also partially funded the case.

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DC Asks For En Banc Hearing In Wrenn Case

August 25, 2017 by 4 Comments

In the name of the greatest people that have ever trod this earth, we draw the line in the dust and toss the gauntlet before the feet of gun violence, and we say gun control now, gun control tomorrow, gun control forever.

The quote above is actually a paraphrase of a line in the 1963 inaugural address of the late Alabama Gov. George Corley Wallace (D-AL). Wallace was talking about the segregation of the races. The absolutism shown by the District of Columbia on the matter of the right to keep and bear arms is strikingly similar to that of Wallace on race. However, unlike Wallace who publicly recanted his racist and segregationist positions, the District of Columbia Council shows no such inclination towards the Second Amendment and the right to keep and bear arms. Thus, it was no surprise that DC filed for an en banc hearing of the Wrenn decision which invalidated their “good reason” requirement for a carry permit.

The brief filed yesterday requesting an en banc rehearing attacks the majority decision on two fronts. First, they argue that they are a special place that is entirely urban and that contains many sensitive places like foreign embassies. They argue that the majority ignored the special needs of such a locale and then contend that their “good reason” may-issue carry law helps reduce crime and save lives. They cite a pantheon of anti-Second Amendment academics ranging from Saul Cornell to John Donohue as their evidence for this contention. They especially rely on the latter and ignore the criticism of his work due to “synthetic statistics”.

The second front of their attack on the majority decision is to say that it ignored historical precedent and the two-step process established in Heller I.

Rather than follow this well-worn path, the panel majority failed to conduct its own historical analysis at the first step, instead drawing assumptions from
Heller I’s historical analysis. Op. 14-17. And then the panel majority did not even proceed to the second step of the Second Amendment inquiry, mistakenly finding the District’s law categorically unconstitutional. Op. 25-29. These missteps departed from established precedent and warrant en banc review.

In this second front they also point out binding precedents in other circuits such as Kachalsky in the 2nd and Peruta in the 9th which ruled against shall-issue carry in the former or any carry in the latter. As to the 7th Circuit and the twin cases of Moore v. Madigan and Shepard v. Madigan which did find a right to carry outside the home, they cherry-picked from that decision.

They conclude:

Even if Heller I’s historical analysis did imply something about the scope of public carry in general, it did not hold anything about whether the pre-existing
right codified in the Second Amendment included a right to publicly carry firearms on crowded city streets in the nation’s capital with no particularized self-defense reason―let alone do so clearly enough to warrant the entry of judgment on appeal from a preliminary-injunction ruling. This Court should grant en banc review to correct the error and consider the District’s law using the appropriate analysis dictated by Heller I, II, and III.

It is a toss-up to whether they will be granted the rehearing and also a toss-up on what the full panel of judges on the DC Circuit might decide. Given former President Obama’s stacking of the DC Circuit, we could very well see a decision like that of the 9th Circuit in Peruta where a win was nullified.

The Second Amendment Foundation, which is an organization plaintiff in the case, released a statement yesterday regarding the petition for an en banc rehearing. Quoting Alan Gottlieb, it said, in part:

“The Second Amendment Foundation expected the City of Washington, DC to file this appeal in an attempt to try to overturn our court victory that said their virtual ban on the right to carry a firearm for self-protection was unconstitutional,” said SAF founder and Executive Vice President Alan M. Gottlieb.

SAF has been battling the city over this issue for some time. The city has strenuously resisted these legal efforts, arguing in its latest petition that the city is “unique” because of its dense population that includes “thousands of high-ranking federal officials and international diplomats.” But earlier this summer, the District Court of Appeals majority opinion is that the “good reason” restriction violates the Second Amendment rights of citizens living in the district.

“They have no intention of complying with any court decision that supports the right to keep and bear arms,” Gottlieb said. “It took the Heller decision to force them to allow a gun in your own home for self-defense. It took the Palmer decision, another SAF case, to force them to repeal their total ban on carry and now they are kicking and screaming about losing the Wrenn decision.”

Gottlieb maintains that even if the District is “unique,” the citizens living there still retain their right to keep and bear arms under the Second Amendment. The city’s “good reason” requirement makes it far too easy to deny all but a few people their rights on the flimsy grounds that average citizens never have a good enough reason. The court recognized this problem and ruled against the District’s requirement, he noted.

“Municipal stubbornness cannot be allowed to outweigh the constitution,” Gottlieb said. “A civil right should not be subject to bureaucratic neurosis.”

I like that last line – a civil right should not be subject to bureaucratic neurosis.

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Dave Workman And SAF Win Against City Of Seattle (Updated)

August 3, 2017 by 3 Comments

The City of Seattle thought adding a “gun violence tax” of $25 for every firearm sold within the city limits would raise between $300,000 and half a million dollars. They forgot to factor in that buyers can vote with their feet and patronize gun stores outside the city limits. Thanks to a lawsuit under the state of Washington’s Public Records Act by Dave Workman and the Second Amendment Foundation, we now know the real amount collected. It was just a bit over $100,000 and most of that comes from one gun store that publicized its own figures.

It is not surprising that Seattle wanted to keep this embarrassing amount quiet. No politician wants the public to know that his or her pet program is an abject failure

According to the press release from the Second Amendment Foundation, they will be awarded a $377  fine plus their attorneys’ fees. The fine is a dollar a day for each day the City of Seattle drug its feet in bad faith on releasing the requested information. The unfortunate part is that city taxpayers and not the politicians are the ones footing the bill.

Congratulations to Dave, Alan, and everyone else at SAF for their win on this First Amendment case with Second Amendment overtones.

UPDATE: More on the win by the Seattle Post-Intelligencer. Mike Coombs, owner of the Outdoor Emporium, was the store owner whose collections constituted about 80% of the collections. Given his comments in the interview, I think the real aim of Seattle City Council is to make the city the next San Francisco. That is, no gun stores within the city limits.

Coombs sought to force the city’s hand by releasing his own pay-ins to the tax. He wrote in a memo to the court that he paid $86,410.63 last year.

The city has only said it collected less than $200,000 and that one business has paid more than 80 percent of the total tax revenue — by that math, Coombs believe he is that big fish, and estimates the city only brought in about $108,000 total.

Coombs also laid out additional devastating statistics for his business: Outdoor Emporium’s firearm sales dropped about 20 percent last year from 2015 and its ammunition sales were cut in half. Overall sales were cut 15 percent because customers who bought guns and bullets also bought other supplies at the store.

His store in Fife has not suffered the same losses.

“Many of our customers have told me that they stopped shopping at our store because of the firearm and ammunition tax, and that has meant that they have started shopping at stores outside Seattle for all their sporting goods needs,” Coombs wrote to the court. “I believe most of Outdoor Emporium’s loss of sales is directly linked to the firearm and ammunition tax.”

What’s more: Coombs laid off some staff and collected $183,747 less in sales tax last year. Deducting the portion of the sales tax that goes to the city from the amount it collected with the gun safety tax, Coombs estimated that Seattle gained only $25,000 from Outdoor Emporium as a result of the ordinance.

 Given the city pulled $275,000 from its general fund to help fund the “gun violence” (sic) prevention pilot program at Harborview General Hospital, the tax was never about raising money. It was about control.

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SAF Sues On Behalf Of Foster Parents In Michigan

July 18, 2017 by 3 Comments

While posting will be sporadic this week as I’m on vacation with my family, I did come across this from the Second Amendment Foundation. They are suing the state of Michigan because of their policies regarding firearms and foster or adoptive parents.

From SAF:

The Second Amendment Foundation today filed a federal lawsuit against the head of the Michigan Department of Health and Human Services (MDHHS) on behalf of four Michigan residents, alleging civil rights violations under color of law for enforcing restrictions on the Second Amendment rights of people who want to be foster or adoptive parents.

SAF is joined in the lawsuit by William and Jill Johnson and Brian and Naomi Mason. The lawsuit, filed in U.S. District Court for the Western District of Michigan, alleges that MDHHS caseworkers told Mr. Johnson, a 100-percent disabled Marine Corps veteran who sought custody of his grandson that he would have to give the agency the serial numbers of all of his firearms. When he questioned this, the caseworkers allegedly told him, “If you want to care for your grandson you will have to give up some of your constitutional rights.” This was after the state asked the Johnsons to be foster parents to their grandson.

Two weeks later, the lawsuit alleges, a Gogebic County Court judge told the Johnsons that if they wanted their grandson placed in their care, “We know we are violating numerous constitutional rights here, but if you do not comply, we will remove the boy from your home.”

“The statements from the caseworker and judge are simply outrageous,” said SAF founder and Executive Vice President Alan M. Gottlieb. “This amounts to coercion, with a child as their bartering chip. I cannot recall ever hearing anything so offensive and egregious, and we’ve handled cases like this in the past. Blatantly telling someone they must give up their civil rights in order to care for their own grandchild is simply beyond the pale.”

The lawsuit asserts that “the policy of the MDHHS, by implementing requirements and restrictions that are actually functional bans on the bearing of firearms for self-defense, both in and out of the home, completely prohibits foster and adoptive parents, and those who would be foster or adoptive parents, from the possession and bearing of readily-available firearms for the purpose of self-defense. This violates Plaintiffs’ constitutional rights under the Second and Fourteenth Amendments.”

The Johnsons and Masons reside in Ontanogan, a small community on the north shore of the Upper Peninsula, on Lake Superior. Mr. Mason has been the Pastor at the Ontonagon Baptist Church in Ontonagon for nine years. He is also the Chair of the Ontonagon County Department of Health and Human Services Board.

“This is a case we simply must pursue,” Gottlieb said. “State agencies and the people who work in those agencies simply cannot be allowed to disregard someone’s civil rights.”

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SAF, CalGuns, Firearms Policy Coalition, And Others Sue California Over Mag Ban

April 29, 2017 by 1 Comment

News of this was released this afternoon while I was in the Annual National Firearms Law Seminar and didn’t have my computer handy. A coalition of groups including the Second Amendment Foundation, the CalGuns Foundation, the Firearms Policy Coalition, and the Firearms Policy Foundation plus seven individuals filed suit challenging the state’s ban on standard capacity magazines. The suit was filed in the US District Court for the Eastern District of California.

From the news release sent out by the CalGuns Foundation:

FRESNO, CA (April 28, 2017) — Today, attorneys for 7 individual gun owners and 4 civil rights advocacy organizations have filed a federal lawsuit challenging the State of California’s ban on so-called “large-capacity” firearm magazines that hold more than 10 rounds “on their own behalves, and as representatives on behalf of the class of individuals who are or would be affected by the Large-Capacity Magazine Ban.”
The civil rights case, captioned as William Wiese, et al. v. California Attorney General Xavier Becerra, et al., was filed in the United States District Court for the Eastern District of California, Fresno Division, and is supported by civil rights groups The Calguns Foundation (CGF), Second Amendment Foundation (SAF), Firearms Policy Coalition (FPC), and Firearms Policy Foundation (FPF)
A copy of the lawsuit’s complaint and its exhibits can be viewed or downloaded here.
Last year, California Governor Jerry Brown signed into law Senate Bill 1446 (SB 1446), which changed state statutes to completely ban law-abiding people from possessing all “large-capacity” firearm magazines as of July 1, 2017. Following that, Lt. Governor Gavin Newsom’s Proposition 63 (Prop 63) “Safety For All Act” gun control initiative—which also contained language banning “large-capacity” magazines—was passed by voters in the November general election.
Prior to Proposition 63 and SB 1446, thousands of law-abiding Californians could possess legally-owned (“grandfathered”) large-capacity magazines, but now must remove them from their possession or ownership in the State by July 1 at their own expense or face criminal liability and fines.
The plaintiffs believe that the State’s ban violates their constitutional rights, including their fundamental, individual right to keep and bear arms protected under the Second Amendment, because magazines are “an intrinsic part of all semi-automatic firearms” and “are not merely individual pieces of personal property, but rather, are intrinsic and inherent constitutionally-protected parts of constitutionally-protected firearms.”
In a “Finding of Emergency” for related firearm magazine regulations it had sought to issue in December (attached to the complaint as Exhibit A), the California Department of Justice admitted that “[t]here are likely hundreds of thousands of large-capacity magazines in California at this time” and that the “Department therefore expects many gun owners to be affected by the new ban.”
In addition to its Second Amendment claims, the lawsuit “further challenges the Large-Capacity Magazine Ban statutory scheme which would…. subject thousands of law-abiding gun owners to criminal liability and sanctions, and subjecting their lawfully-possessed personal property to forfeiture, seizure and permanent confiscation, without due process or compensation.”
The case also includes vagueness challenges, one of which centers on the confusion surrounding the State’s two active—but very different—chaptered versions of Penal Code § 32406. A number of exemptions to the ban are found in the active Section 32406 that was enacted under SB 1446, but the active version of Section 32406 enacted by California voters under Prop 63 contains far fewer exemptions.
“California’s magazine ban laws violate the constitutional rights of law-abiding people in many ways,” said attorney George M. Lee, a partner of the plaintiffs’ San Francisco law firm Seiler Epstein Ziegler & Applegate LLP. “Not only does the ban infringe on Second Amendment rights, but it is clearly now a taking of private property. In fact, as we contend in the complaint, it amounts to a de facto confiscation.”
Lee also takes issue with the way the new magazine ban affects people who have lawfully possessed “grandfathered” magazines since before the original ban on importation in 2000. “As a part of the legislative compromise associated with that original ban, owners of those grandfathered magazines were specifically exempt from the law,” he said. “The Legislature is basically reneging on that deal made many years ago.”
“The State of California’s ban scheme stands for the proposition that most any personal property can simply be taken away from you or forced out of your possession without due process or just compensation by legislative fiat,” commented CGF Chairman Gene Hoffman. “Today it’s firearm magazines, but tomorrow it will most certainly be some other constitutionally-protected private property.”
“Enforcement of this ban,” explained SAF founder and Executive Vice President Alan M. Gottlieb, “would immediately place thousands of law-abiding California gun owners in jeopardy of criminal liability and subjects their personal property to forfeiture, seizure and permanent confiscation, which is government taking, without due process or compensation. We cannot allow that to go unchallenged.”
“California’s magazine laws will turn many thousands of good, law-abiding people into criminals,” said Brandon Combs, president of FPC and chairman of FPF, “but do nothing to advance public safety.
“While California’s political leadership might prefer some kind of police state without any Second Amendment or property rights, we believe that the Constitution takes their policy preferences off the table. This lawsuit is one of many that we hope will help restore fundamental freedoms in the Golden State and across the nation.”
Douglas A. Applegate, also of Seiler Epstein Ziegler & Applegate LLP, joins Lee on the case as co-counsel.

This plus the NRA lawsuit is a good start.

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Ezell II Is Another Win For The Second Amendment

January 19, 2017 by 1 Comment

The Seventh Circuit Court of Appeals decided in favor of the Second Amendment again today. In a majority decision written by Judge Diane Sykes, the court found that the new zoning restrictions imposed by the City of Chicago on shooting ranges were unconstitutional. It also found that the city’s restriction that limited range use to those 18 years of age or older was unconstitutional.

Judge Ilana Rovner concurred on one of the zoning restrictions and dissented on another one of these restrictions and on the age restriction.

I am in the midst of reading the decision now. In the meantime, here is the response of the Second Amendment Foundation which brought the original and subsequent lawsuit on behalf of Rhonda Ezell and the other plaintiffs.

BELLEVUE, WA — A three-judge panel of the Seventh U.S. Circuit Court of Appeals today handed the Second Amendment Foundation a victory in its challenge of firearms regulations in the City of Chicago, striking down a zoning provision, reversing an earlier ruling that upheld “distancing” restrictions for gun ranges, and reversing an earlier ruling that upheld certain age restrictions.

Writing for the court, Judge Diane S. Sykes noted, “To justify these barriers, the City raised only speculative claims of harm to public health and safety. That’s not nearly enough to survive the heightened scrutiny that applies to burdens on Second Amendment rights.”

“We are delighted with the outcome of this lengthy case,” said SAF founder and Executive Vice President Alan M. Gottlieb. “The extremes to which the city has gone in an attempt to narrow its compliance with the Supreme Court ruling in McDonald v. City of Chicago can only be described as incredible stubbornness. In the 6½ years since the high court ruling in our McDonald case, the city has had ample opportunity to modify its regulations. Instead, Chicago has resisted reasonableness.

“We had already sued Chicago successfully to knock down its outright ban on gun ranges within the city,” he recalled. “Then they adopted new regulations that included the zoning, distancing and age restrictions that we contested in this legal action, known as ‘Ezell II.’

“The city tried to severely limit where shooting ranges could be located, and they failed,” he continued. “The city put up arguments about the potential for gun theft, fire hazards and airborne lead contamination, and they failed. Even the judge’s opinion today noted that the city had ‘produced no evidentiary support for these claims beyond the speculative testimony of three city officials.’ This nonsense has got to stop.

“Today’s ruling is a victory for citizens of Chicago who want to exercise their rights,” Gottlieb said, “and particularly for Rhonda Ezell, who has been steadfast in her resolve.”

Also on the panel with Judge Sykes were Judges Michael S. Kanne and Ilana D. Rovner.

As a side note, Judge Sykes is one of the jurists mentioned as a possible successor to Justice Antonin Scalia by President-elect Donald Trump. Given this decision and the earlier Ezell I decision, it is my hope that she be given the strongest consideration for this nomination.

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Alan Gottlieb Of SAF/CCRKBA On Trump Win

November 10, 2016 by

Alan Gottlieb of the Second Amendment Foundation and the Citizens Committee for the Right to Keep and Bear Arms released this statement congratulating Donald Trump and Mike Pence on their win.

BELLEVUE, WA — In a joint statement, the Second Amendment Foundation and Citizens Committee for the Right to Keep and Bear Arms congratulated the nation’s gun owners for making possible Tuesday’s victory that will send Donald J. Trump to the White House in 2017.

SAF and CCRKBA also offer their sincere congratulations to President-elect Trump and Vice President-elect Mike Pence for their historic and stunning victory, and especially for Mr. Trump’s gracious call for unity among all Americans.

“What happened Tuesday night was a reaffirmation that Americans can make the system work, and that this nation’s gun owners are a cornerstone of that system,” said SAF founder and Executive Vice President Alan M. Gottlieb. “It cannot be ignored that this nation’s tens of millions of honest firearms owners turned out to protect their constitutional rights. From the outset, Mr. Trump made it clear that the Second Amendment will be safe on his watch.

“While America’s hard-working gun owners can celebrate the victory they helped make possible,” added Gottlieb, who also chairs the CCRKBA, “we must remain mindful that the gun prohibition lobby, which is largely funded by elitist billionaires like Michael Bloomberg, will almost certainly double down on their efforts to erode our Second Amendment rights at the state level, whenever and wherever they can.

“Every gun owner owes a huge ‘Thank You’ to our good friends at the National Rifle Association for their efforts and expenditures to educate and guide voters,” Gottlieb noted.

Having talked with Alan at the Gun Rights Policy Conference and listened to all the speakers there, I think there was a sense then that we were going to have to work very hard to preserve our gun rights and, even then, we might fail. That was September and this is November. My how things have shifted.

I would like to point out Alan’s thanks to the NRA for their immense efforts in this election. Alan is not only the Executive Director of SAF but also a Life Member of the NRA.

As to the NRA’s efforts, see this clip with NBC’s Chuck Todd and Tom Brokaw.

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Big Win In The 3rd Circuit

September 8, 2016 by 1 Comment

Alan Gura won a big one in the 3rd Circuit Court of Appeals for the Second Amendment. In an 8-7 en banc decision, the court found that some people who had non-violent misdemeanors and/or felonies could get their Second Amendment rights restored. The court combined the cases of Binderup v. Attorney General and Suarez v. Attorney General for their hearing.

Only three judges agreed on the court’s rationale for restoring the gun rights of  Mr Binderup and Mr. Suarez. Another five judges concurred in the outcome but for different reason while seven judges dissented. The court’s governing opinion found:

Binderup and Suarez have presented unrebutted
evidence that their offenses were nonviolent and now decades
old, and that they present no threat to society, which places
them within the class persons who have a right to keep and
bear arms. Accordingly, 18 U.S.C. § 922(g)(1) is
unconstitutional as applied to them.

The court’s opinion, concurrences, and dissent total 178 pages of somewhat confusing logic as to the restoration of gun rights. Professor Eugene Volokh presents a good summary of it here.

The Second Amendment Foundation is very pleased with the result. It is a good win going into the Gun Rights Policy Conference later this month.

BELLEVUE, WA – The Third U.S. Circuit Court of Appeals has ruled that individuals convicted of certain non-serious misdemeanor crimes do not lose their fundamental rights under the Second Amendment in a decision involving two separate cases brought by the Second Amendment Foundation.

The unanimous ruling came from an en banc panel in the combined cases of Binderup v. the U.S. Attorney General and Suarez v. the U.S. Attorney General.

In 1990, Julio Suarez was stopped on suspicion of driving while intoxicated. At the time he was carrying a handgun and spare ammunition without a permit. He pleaded guilty in Maryland state court to the charge and received a 180-day suspended sentence and $500 fine. Daniel Binderup pleaded guilty in 1996 to a misdemeanor charge related to a consensual relationship he had with a 17-year-old female employee and received three years’ probation and a $300 fine. Neither man was ever incarcerated.

However, in both cases, the crimes could have resulted in jail time for which the federal gun law blocks firearms possession. Binderup and Suarez petitioned the Pennsylvania court in 2009 to remove the state prohibition against firearms possession, but federal law “continues to bar them from possessing firearms because their convictions have not been expunged or set aside, they have not been pardoned, and their civil rights have not been restored,” the court noted.

“Where the Second Amendment’s guarantees apply, as they do for Binderup and Suarez, ‘certain policy choices’ are ‘necessarily’ taken ‘off the table.’ Forever prohibiting them from possessing any firearm is one of those policy choices,” the appeals court said in today’s ruling.

“Today’s victory confirms that the government can’t simply disarm anyone it wishes,” stated SAF attorney Alan Gura. “At an absolute minimum, people convicted of non-serious crimes, who pose no threat to anyone, retain their fundamental rights. That this is even controversial is a matter of some concern.”

SAF founder and Executive Vice President Alan Gottlieb cheered the ruling, adding that, “In an era where government officials want to disqualify as many people as possible from gun ownership, this ruling is monumental. This case will lead to the restoration of people’s civil and constitutional right to own a firearm that is long overdue.”

Gottlieb noted that today’s victory once again reinforces SAF’s long-stated mission of “Winning firearms freedom, one case at a time.”

Professor Volokh is of the opinion that if the Department of Justice decides to appeal the case it will most likely be taken up by the Supreme Court. If they do, it will be interesting to see where the Court’s liberals who are anti-gun come down on this. While they are anti-gun, they tend to be more supportive of rights for those who have broken the law in the past. Given that both Mr. Binderup and Mr. Suarez were convicted of non-violent misdemeanors for which they served no actual jail time and that they kept their noses clean after that, saying that there is a strong governmental interest in prohibiting them from possessing firearms would be a stretch.

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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.