9th Circuit Issues Stay In Rhode

The 9th Circuit Court of Appeals granted an administrative stay of Judge Roger Benitez’s grant of a preliminary injunction in Rhode v. Becerra late on Friday, April 24th. Judge Benitez had earlier that day denied an ex parte motion by Attorney General Xavier Becerra requesting a stay of his injunction.

In dismissing it he said, in part:

The Attorney General does not point to any change in circumstances or new evidence to undermine that conclusion. That the laws have been in effect for 10 months reflects this Court’s patient consideration, not its constitutional approval. Any delay was occasioned by judicial optimism that the high erroneous denial rate of early Standard background checks might significantly improve. It did not. Instead, the constitutional impingements on Second Amendment rights that began immediately, will continue if a stay is granted. Thus, the Court cannot find the remaining two factors tip the scales in favor of a stay. A 16.4% error rate that deprives citizens the enjoyment of any constitutional right is offensive and unacceptable.

The Attorney General’s Office then filed an emergency motion with the 9th Circuit to stay the injunction pending appeal and requested immediate relief. They argued that a stay would be in the public interest and would prevent prohibited persons from purchasing ammunition. They went on to say the plaintiffs were not prevented from purchasing ammunition. Of course, this ignores the 16.4% error rate referenced by Judge Benitez.

It should be noted that the stay granted by the 9th Circuit is an administrative stay and does not address the merits of Becerra’s argument. They will rule on that later.

The stay was issued at 9:45pm local time on the 24th. Ammunition orders in the system prior to that could be processed according to what I’m reading.

Freedom Munitions and Brownells both said they would be honoring orders made prior to that time and would be shipping directly to the purchaser.

Linton V. Becerra – Another Second Amendment Lawsuit Against California

Chad Linton and Paul McKinley Stewart had screwed up in their younger days, paid their debt to society, and went on to lead lives in California as good, productive citizens. More importantly to our discussion here, the relevant courts in both Washington State and Arizona had explicitly expunged their non-violent felony convictions and explicitly restored their rights to own, possess, and purchase firearms. They further underwent multiple background and fingerprint checks and Linton actually had purchased firearms in California in the past. However, that is not good enough for California now. When they each went to purchase firearms starting in 2015, they were turned down the California Department of Justice and its Bureau of Firearm based upon Cal. Pen. Code §§ 29800 and §§ 30305.

Messrs. Linton and Stewart along with institutional plaintiffs the Firearms Policy Foundation, the Firearms Policy Coalition, the Second Amendment Society, the Calguns Foundation, and the Madison Society Foundation filed suit in US District Court for the Northern District of California on Thursday, December 20th. The parties are represented by attorney George M. Lee of Seiler, Epstein, Ziegler & Applegate of San Francisco. They named California Attorney General Xavier Becerra (D-CA), Acting Chief of the Bureau of Firearms Martin Horan, and Deputy Attorney General Robert Wilson as defendants.

Mr. Linton was stationed at NAS Whidbey Island when he was stopped for a DUI and trying to elude police. He pled guilty and was sentenced to time served (7 days) and probation with the promise that his felony conviction would be downgraded to a misdemeanor if he completed his probation successfully which he did. He received a certificate of discharge stating that all of his civil rights were restored. Fast forward from 1987 to 2015. Mr. Linton attempted to buy a handgun but was denied by the State of California due to the prior felony. He hired an attorney in Washington State to reopen the proceedings, withdraw his guilty plea, and enter a not-guilty plea. The Superior Court in Washington State vacated his prior conviction, set aside his guilty plea, and restored his rights.

On April 18, 2016, the Superior Court of the State of Washington, Island County,
further issued, upon Plaintiff’s petition, an Order Restoring Right to Possess Firearms pursuant
to Revised Code of Washington (RCW) 9.41.040(4). A copy of this order is attached as Exhibit
B. As part of that petition, and order, the court found that Plaintiff Linton was qualified,
pursuant to RCW 9.41.040(4), to have the right to possess firearms restored to him, and
accordingly, ordered “that Petitioner Chad Linton’s civil rights and right to possess firearms are
FULLY RESTORED
pursuant to RCW 9.41.040(4).” (Id.) The court further ordered the
Washington State Patrol to transmit a copy of its Order to the Federal Bureau of Investigation.

When later in 2016 Linton attempted to purchase a rifle the California DOJ denied it and sent him a letter stating that he was ineligible due to being a felon. His California attorney made multiple requests to the California DOJ to clear up the matter and provided them with the Washington State court orders. Linton assumed the matter had been cleared up when he went to purchase a revolver and was again denied. Soon thereafter he was visited by agents of the California DOJ’s Armed Prohibited Persons System enforcement project who seized all of his firearms including a family heirloom. Bear again in mind that he was not a prohibited person under either Washington State or Federal law. Indeed Deputy AG Robert Wilson went so far as to say that they would not honor the Washington State court’s findings and that Mr. Linton try to get a presidential pardon as that is the only thing they would accept.

Mr. Stewart made similar successful efforts to get his record expunged by the State of Arizona. In 2016 the Yuma County Superior Court specifically sent aside his conviction and restored his firearm rights. The Arizona Department of Public Safety sent Stewart more documentation indicating the felony conviction had been set aside and his records had been corrected. Notwithstanding this, like Mr. Linton, he was denied when he sought to purchase a firearm.

Count One alleges the state has violated the plaintiffs’ rights under the Second Amendment by denying them the right to possess firearms in their home for self-defense.

Notwithstanding the non-violent nature of those
convictions, and the subsequent restoration of plaintiffs’ rights, the laws and Defendants’
policies, practices, and customs described herein, as applied to Individual Plaintiffs, amount to a
total and permanent deprivation of their fundamental, individual right to keep and bear arms and
ammunition, as guaranteed by the Second Amendment, and are therefore an infringement upon
those rights. The circumstances surrounding the Individual Plaintiffs’ convictions are therefore
and should be distinguishable from those persons that have been historically excluded from the right to keep and bear arms.

Count Two states that the defendants’ actions violate the Full Faith and Credit Clause of Article IV, Section 1 of the Constitution. Both the Constitution and subsequent Supreme Court decisions require each state to honor the valid judgments of courts in other states. The Supreme Court said in 1998 in Baker by Thomas v. General Motors Corp, that “A final judgment in one State, if rendered by a court with adjudicatory authority over the
subject matter and persons governed by the judgment, qualifies for recognition throughout the
land.”

The third and final count states that California is violating both the Privileges and Immunities Clause of Article IV, Section 2 and the 14th Amendment, Section 1. California law provides a process whereby someone convicted of a “wobbler” felony can get his or her firearms rights restored. A wobbler felony is one where the person could have been charged with either a felony or misdemeanor for the offense. If the person gets the felony downgraded to a misdemeanor under Pen. Code § 17(b), they would also be eligible to get their record expunged in its entirety under Pen. Code § 1203.4. Both would allow the person in question to have their firearms rights restored.

However, the State of California will only honor the reduction of these qualifying
felony convictions utilizing the statutes and the process described above. As shown throughout
this complaint, California refuses to honor the comparable process utilized by other states,
including the States of Washington and Arizona, shown above, even where the courts of those
jurisdictions expressly have set aside the felony convictions and have restored firearms rights to
such persons who have successfully completed their terms of probation. Accordingly, Defendants’ refusal to honor the set-aside or vacation of those felony convictions, and/or
restoration of firearm rights, by courts of those other states, amounts to unlawful discrimination,
favoring California’s citizens, since persons convicted of felonies in other states, in essence, have
no actual means to seek judicial restoration of their firearms rights here, or otherwise comparable
to the process of reduction under those mechanisms (including Pen. Code § 17(b)) described
above.

In essence, what you have is California saying that they will treat their restoration of rights as legitimate while that of other states as illegitimate for the purposes of firearms rights.

The plaintiffs are seeking both declaratory and injunctive relief under all counts as as applied to themselves and to others similarly situated. Of course, they are also seeking attorneys’ fees.

I’m not a judge nor a lawyer but if I had to hazzard a guess this will case will be decided on the Full Faith and Credit Clause and the Privileges and Immunities Clause. While it is obviously a denial of Second Amendment rights, the courts will go for the low-hanging fruit of Counts Two and Three.

Injunction Sought In California “Assault Weapon” Registration Lawsuit

As I reported about a month ago, a coalition of California gun rights groups, the SAF, and individual plaintiffs sued Attorney General Xavier Becerra (D-CA) and the California DOJ over their computer system failures which made timely registration of “assault weapons” impossible. This coalition has now added four more plaintiffs in an amended complaint and is moving for a preliminary injunction.

More details are in the release sent out this afternoon. You would think that in California of all places that you could find competent IT professionals who could get a registration system not to crash. I guess not.


BREAKING: Gun Owners, Civil Rights Groups Seek Injunction in California “Assault Weapon” Lawsuit

California Attorney General Xavier Becerra and his DOJ botched
the “assault weapon” registration program, putting thousands of gun
owners at risk of felony charges. Gun owners and civil rights advocates
are crying foul – and taking them to court.



SACRAMENTO, CA
(August 15, 2018) — Attorneys for seven California gun owners and four
Second Amendment advocacy organizations announced today that they have
filed an amended complaint and a new motion seeking a preliminary injunction in the civil rights lawsuit Sharp, et al. v. Attorney General Xavier Becerra, et al. over
the California Department of Justice’s failures surrounding the ‘bullet
button assault weapon’ registration program. A copy of the court
filings can be viewed or downloaded online at https://www.firearmspolicy.org/sharp

The amended complaint added as plaintiffs four additional gun owners
who were denied their rights by the DOJ, and also added the DOJ’s Chief
of the California Justice Information Services Division, Joe Dominic, as
a defendant. The motion seeks to enjoin sections of the Penal Code
relating to so-called “assault weapons,” including provisions that
subject the possession or transportation of such firearms to serious
criminal liability, including potential felony imprisonment and property
seizure, “throughout the pendency of this case, or until” the
plaintiffs and gun owners like them “have had a reasonable opportunity,
as determined by the Court, to register the qualifying firearms through a
functional registration system.” 

The plaintiffs argue that the DOJ had a legal duty to provide a
functional registration system throughout the registration period, but
that they were unable to exercise their own rights and legal duties “due
to the Defendants’ actions and failures, including but not limited to
the inaccessibility, defects, and/or non-functionality of the DOJ’s
CFARS-based registration system.” Because of that, the plaintiffs argue,
the State violated their civil rights protected under the state and
federal constitutions and denied them their statutory right to register
their firearms to avail themselves of legal protections against harsh
criminal laws. 

“[As we argue in our motion], this is about the injustice of forcing
people to comply with a law, and then depriving them of the means to do
so,” said attorney George Lee, lead counsel on the case. “It is simply
unconscionable that the Attorney General would even think about
enforcing a law where his Department’s own failures led to many people’s
inability to register their firearms in the first place.” 

In a declaration filed
with the court, the plaintiffs’ technical expert said that “it is very
clear” the problems experienced by the plaintiffs and others across the
state “were caused by either the DOJ’s CFARS servers being overloaded
and/or possibly by one of the State of California datacenters itself
being unavailable due to network routing or overload issues.” 

“This is fundamentally a simple lawsuit about a troubling issue.
Attorney General Becerra and his DOJ had one job to do: Provide a
functional system for gun owners to use in registering their eligible
firearms. But instead of doing their jobs, they created a huge new mess
for law enforcement and put innocent people and lawfully-owned property
at serious risk,” explained Firearms Policy Coalition President Brandon
Combs. 

“This unjust California government-created problem must be stopped
immediately,” commented Second Amendment Foundation Founder and
Executive Vice President, Alan Gottlieb. “Gun owners should not be put
at risk due to state regulatory incompetence.” 

“The bottom line is that California cannot have it both ways. If the
state is going to require registration of firearms, it cannot make that
process illusory and set people up for confiscation of their property,”
said Gene Hoffman, chairman of The Calguns Foundation. “Here, Becerra
and DOJ failed to perform their duties, failed gun owners, failed the
Legislature and Governor Brown, and failed the people of the State of
California.” 

Elaborating on the case, Combs explained, “Because of Becerra’s and
DOJ’s disastrous, incompetent, and possibly malicious handling of one
simple task, now thousands of gun owners are at risk of having their
guns seized or destroyed, or going to jail, simply for driving to the
gun range with a firearm that they legally acquired years ago.” 

“It is beyond clear that Attorney General Becerra is so distracted by
federal issues and President Trump that he’s completely forgotten to
fairly and properly enforce the laws of his own state – and to protect
the civil rights of innocent people first and foremost,” Combs said. 

“These plaintiffs and others like them should not have to face a
district attorney or jury in a criminal trial because Attorney General
Becerra and DOJ set them up from day one,” said Jonathan Jensen,
vice-president of Firearms Policy Foundation. 

The civil rights lawsuit is supported by The Calguns Foundation
(CGF), Second Amendment Foundation (SAF), Firearms Policy Coalition
(FPC), and Firearms Policy Foundation (FPF). The plaintiffs are
represented by attorneys George M. Lee and Douglas Applegate of San
Francisco-based Seiler Epstein Ziegler & Applegate LLP, as well as
Raymond M. DiGuiseppe, a former California deputy attorney general and
prosecutor. 

Californians who tried to register their firearms as “assault
weapons” before July 1 but were unable to, or who suffered a privacy
breach at DOJ, should contact the organizations’ Legal Action Hotline
immediately at https://www.firearmspolicy.org/hotline or by telephone at 855-252-4510. 

Firearms Policy Coalition (www.firearmspolicy.org)
is a 501(c)4 grassroots nonprofit organization. FPC’s mission is to
defend the Constitution of the United States, especially the
fundamental, individual Second Amendment right to keep and bear arms,
through advocacy, legal action, education, and outreach. 

Firearms Policy Foundation (www.firearmsfoundation.org)
is a 501(c)3 grassroots nonprofit organization. FPF’s mission is to
defend the Constitution of the United States and the People’s rights,
privileges and immunities deeply rooted in this Nation’s history and
tradition, especially the inalienable, fundamental, and individual right
to keep and bear arms. 

The Calguns Foundation (www.calgunsfoundation.org)
is a 501(c)3 non-profit organization that serves its members,
supporters, and the public through educational, cultural, and judicial
efforts to advance Second Amendment and related civil rights. 

Second Amendment Foundation (www.saf.org)
is the nation’s oldest and largest tax-exempt education, research,
publishing and legal action group focusing on the Constitutional right
and heritage to privately own and possess firearms. Founded in 1974, The
Foundation has grown to more than 650,000 members and supporters and
conducts many programs designed to better inform the public about the
consequences of gun control.

California AG Becerra And Cal DOJ Served With Petition By Firearms Policy Coalition

I’ll say right off the bat that I don’t understand policies and procedures in California. While it is a beautiful state with bad roads and even worse gun laws, their legal and administrative procedures are a bit of a mystery to me. When I received the notice below from the Firearms Policy Coalition, I wondered why a petition with signatures was being served on the attorney general. After I started to read the petition – written by a North Carolina lawyer no less! – I started to understand that citizens and groups in California use petitions to put government officials on legal notice about their action. In this case, it has to do with underground and unpublished firearms regulations that the California Court of Appeals had enjoined AG Xavier Becerra (D-CA) from enforcing.

You can read the release along with the link to the petition below:

SACRAMENTO, CA (May 23, 2018) — Today, civil rights
advocates at Firearms Policy Coalition have
issued the following statement:
 
Recently, Attorney General Becerra said, “Here in
California, we respect the Constitution and follow the law.”
But neither is true. 
 
This morning, our Legislative Advocate, Craig DeLuz, served
on California Attorney General Xavier Becerra and his
Department of Justice a petition challenging their illegal
underground regulation
. This petition was also sent to
the Office of Administrative Law, the state’s regulatory
watchdog agency.
 
In spite of an unanimously-decided Court of Appeal
published opinion issued in February, and a permanent
injunction issued weeks ago, Becerra’s DOJ continues to
promulgate and enforce that same illegal underground
regulation. Their stunning and troubling disregard for lawful
court orders is contrary to the rule of law. 
 
Becerra’s weaponized Department of Justice regularly
attacks the fundamental rights and property of law-abiding gun
owners in law enforcement actions, their lobbying of the
Legislature, and litigation. 
 
Indeed, Becerra and his army of anti-gun DOJ lawyers and
special agents ignore the text of the Constitution and
California’s statutes, forcing their anti-gun agenda on
millions of people—the law and civil rights be damned.
 
Becerra also recently said that, “in California, we believe
our communities are safest when we have trust between our law
enforcement & the communities they serve.” But such trust
is impossible, and undeserved, when the state’s top law
enforcement officer shows a total lack of regard for the
People, their rights, and the laws he has a duty to follow and
enforce fairly. 
 
If Attorney General Becerra and the Department of Justice
want to build trust and be respected, they should start by
being trust-worthy and giving respect to law-abiding gun
owners and their fundamental, individual right to keep and
bear arms.

California Sued Over New AWB Regulations

A coalition of gun rights organizations plus three individual plaintiffs have sued California Attorney General Xavier Becerra and the California Department of Justice over newly adopted regulations concerning the assault weapons ban on bullet buttons. The suit was filed in California Superior Court for the County of Riverside.

The CalGuns Foundation has this summary of the case:

Summary: Holt, et al. v. California Attorney General Xavier Becerra is a constitutional, statutory, and Administrative Procedure Act (APA) challenge to the DOJ’s “bullet-button assault weapon” regulations. The DOJ’s regulations expose people to criminal liability that would not otherwise exist under the actual laws regulating firearms in California.
Individual Plaintiffs/Petitioners: George Holt, Irvin Hoff, Michael Louie, and Rick Russell are all law-abiding, tax-paying residents of California who lawfully own firearms potentially subject to the DOJ’s illegal regulatory scheme. 
Institutional Plaintiffs/Petitioners: Firearms Policy Coalition; Firearms Policy FoundationThe Calguns FoundationSecond Amendment Foundation
Defendants: Xavier Becerra, Attorney General of California; Stephen J. Lindley, Chief of the Department of Justice Bureau of Firearms; the California Department of Justice; Debra N. Cornez, Director of the Office of Administrative Law; Betty T. Yee, California State Controller; Does 1-50,
Litigation Counsel: George M. Lee; Douglas A. Applegate; Raymond M. DiGuiseppe

The complaint can be found here.

The institutional plaintiffs – SAF, CalGuns Foundation, Firearms Policy Coalition, and Firearms Policy Foundation – released a joint statement on the lawsuit.

Gun Owners & Civil Rights Groups File Legal Challenge to California’s “Assault Weapon” Regulations

The lawsuit argues that the State’s “bullet-button assault weapon” regulations are largely unlawful, should have been subject to the Administrative Procedure Act process, waste taxpayer dollars, and should not be allowed to stand.

SACRAMENTO, CA (November 30, 2017) — Today, attorneys for four individual gun owners as well as advocacy organizations The Calguns Foundation (CGF), Second Amendment Foundation (SAF), Firearms Policy Coalition (FPC), and Firearms Policy Foundation (FPF) filed a new lawsuit and petition for writ of mandate that challenges more than a dozen new “assault weapon” regulations ramrodded into effect by the State of California’s Department of Justice (DOJ).

Named as defendants are California Attorney General Xavier Becerra, Chief of the DOJ Bureau of Firearms Stephen Lindley, the California Department of Justice itself, Director of the Office of Administrative Law (OAL) Debra Cornez, and State Controller Betty Yee.

Plaintiffs’ attorney George M. Lee said that the lawsuit was focused on protecting law-abiding people from illegal regulatory and enforcement actions.

“By making and enforcing unlawful rules, and going around the rules to do it, the DOJ is putting tens if not hundreds of thousands of law-abiding people at risk of serious criminal liability,” said Lee. “This case seeks to make the DOJ follow the same laws they impose on others and protect law-abiding gun owners in the process.”

“The DOJ is acting like an out-of-control bullet train that’s running off the rails,” said plaintiffs’ attorney and former Deputy Attorney General Raymond DiGuiseppe. “Our plaintiffs want to get the State’s agencies back on the tracks and following the law.”

CGF Chairman Gene Hoffman notes, “The DOJ has used every trick in the book to avoid good faith rulemaking action, and we cannot allow that to go unchallenged. California laws are bad enough without piling on unlawful and harmful regulations, so we seek here to restore the rule of law—and some sanity.”

“The government agencies responsible for enforcing the law must also follow the law,” SAF founder and Executive Vice President Alan M. Gottlieb said. “This case is an important step in protecting law-abiding gun owners from an out-of-control regulatory state.”

“The DOJ is playing a dangerous game with the law, and it needs to stop,” observed FPF Vice President Jonathan Jensen. “Tens of thousands of people could face potential felonies in just a handful of months, and meanwhile the DOJ has moved the goalposts with the registration clock ticking.”

“The State of California is nothing short of bipolar with its gun control policies,” commented FPC President Brandon Combs. “On one hand, the State is requiring people to register virtually all of their guns. On the other hand, the DOJ is doing everything it can to suppress compliance and prevent people from registering their guns.”

A copy of the complaint and petition for writ of mandate can be viewed or downloaded at http://bit.ly/holt-v-becerra.

CASE BACKGROUND:

Last July, California Governor Jerry Brown signed a number of new gun control bills into law, including two (SB 880, Hall; AB 1135, Levine) expanding the State’s ban on so-called “assault weapons.”

“The Legislature ignored every rule in the book to fast-track their civilian disarmament agenda and herd the people into a state-wide gun-free-zone,” said FPC Spokesperson Craig DeLuz in a statement at the time.

Following that, last December, the California DOJ submitted its first attempt at “assault weapons” regulations under the OAL’s “File & Print” process, which means that the DOJ claimed the regulations were not subject to the public notice or comment requirements of the Administrative Procedure Act (APA).

However, DOJ withdrew the regulations near the end of OAL review period after receiving thousands of opposition letters from FPC members and Second Amendment supporters.

Then, in May of this year, the DOJ re-submitted regulations under the same “File & Print” process. FPC, FPF, CGF, and Craig DeLuz sued the DOJ over the Department’s actions of blocking access to public records concerning its promulgation of these regulations. The regulations were completely rejected by OAL a little more than a month later.

Following that, the DOJ submitted a virtually-identical set of regulations under the “File & Print” process, again claiming “APA-exempt” status. The OAL approved those regulations in July, allowing the DOJ to go forward with its new “assault weapon” regulatory process.

Then, just before closing doors for the Thanksgiving holiday, the DOJ notified FPC and other Institutional Plaintiffs that it had filed yet another proposed rulemaking on “bullet-button assault weapons” (that would create new 11 CCR § 5460) for the purpose of bootstrapping its prior July regulations into effect for all purposes including criminal prosecutions.

FPC published the new proposed regulations and prior regulatory updates at BulletButtonBan.com, a Web site it established in 2016 for tracking the new California assault weapon laws and regulations. Members of the public can use FPC’s Grassroots Action Tools to submit responsive written comments to DOJ regarding the new proposed regulations.

A public hearing on the new regulations is scheduled for 10 a.m. on January 8, 2018, at the Resources Building Auditorium in Sacramento.

ABOUT THE INDIVIDUAL PLAINTIFFS:

Plaintiffs George Holt, Irvin Hoff, Michael Louie, and Rick Russell are all law-abiding, tax-paying residents of California who lawfully own firearms potentially subject to the DOJ’s illegal regulatory scheme. This scheme would retroactively deem their firearms “assault weapons” that either must now be registered as such through a burdensome and wasteful registration process or that cannot be registered all, effectively rendering any continued possession unlawful. The DOJ’s regulations expose them to criminal liability that would not otherwise exist under the actual laws regulating firearms in California.

The plaintiffs have joined this lawsuit to stand against the illegal regulatory actions of the DOJ and protect their rights and the rights of countless other law-abiding California gun owners being placed in jeopardy.

ABOUT THE ORGANIZATIONS:

The Calguns Foundation (www.calgunsfoundation.org) is a 501(c)3 non-profit organization that serves its members, supporters, and the public through educational, cultural, and judicial efforts to advance Second Amendment and related civil rights.

Second Amendment Foundation (www.saf.org) is the nation’s oldest and largest tax-exempt education, research, publishing and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. Founded in 1974, The Foundation has grown to more than 650,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control.

Firearms Policy Coalition (www.firearmspolicy.org) is a 501(c)4 grassroots nonprofit organization. FPC’s mission is to defend the Constitution of the United States, especially the fundamental, individual Second Amendment right to keep and bear arms, through advocacy, legal action, education, and outreach.

Firearms Policy Foundation (www.firearmsfoundation.org) is a 501(c)3 grassroots nonprofit organization. FPF’s mission is to defend the Constitution of the United States and the People’s rights, privileges and immunities deeply rooted in this Nation’s history and tradition, especially the inalienable, fundamental, and individual right to keep and bear arms.