Introducing the NRA ILA Legal
Update!
To give NRA members
and gun owners the latest information on Second Amendment cases filed or
supported by the NRA Institute for Legislative Action (www.nraila.org),
NRA-ILA is pleased to announce a new online newsletter, the NRA-ILA Legal
Update.
Since the U.S. Supreme Court’s 2008
decision in District of Columbia v. Heller, holding that the Second
Amendment guarantees an individual right to keep and bear arms, hundreds of
Second Amendment cases have been litigated in federal and state courts.
The pace of litigation has only increased since the Court’s 2010 decision in
McDonald v. City of Chicago, holding that the right to keep and bear arms
is fundamental and protects all Americans.
Not all of those cases are ours, of
course. Many have been brought by other organizations or individuals, or
raised by defendants in criminal cases. As with any legal issue that comes
up in a large and diverse variety of situations, the arguments put forward range
from convincing to frivolous. NRA-ILA’s goal in every case we consider is
to strategically advance the rights of gun owners, while not creating bad
precedent. To that end, we routinely consider requests from attorneys in
the field, as well as seek opportunities to advance key issues with the
assistance of some of America’s top appellate lawyers. (See “NRA-ILA
Referrals and NRA-ILA Supported Litigation” at the end of this newsletter.)
Depending on the situation, our
involvement can range from being a named plaintiff in a suit, to funding and
supporting a suit, to intervening and becoming a party, to participating as an
amicus, or in some instances to being designated by one of the parties
in a suit to lead the oral argument.
In addition to news and updates on
our current cases, future issues of the NRA-ILA Legal Update will include short,
plain-English articles explaining some of the key legal concepts that affect
legislation and litigation on gun issues. Unfortunately, we cannot list
each case in which we are involved at the moment, nor can we list each case
we’re considering. At any given time, NRA-ILA is involved in more than
dozens of cases, amounting to millions of dollars in legal bills every year.
The generosity and commitment of Second Amendment supporters make our efforts
possible. For that, all of us at NRA-ILA are deeply grateful.
Current
Litigation
Protecting the Second Amendment Rights of
Every Adult
Although the Heller decision
made clear that “the Second Amendment right is exercised individually and
belongs to all Americans,” the federal Gun Control Act continues to impede the
exercise of that right by many American adults solely because of their age.
Although handgun possession in the home is clearly protected by the Second
Amendment, an adult who is 18, 19 or 20 years old cannot currently buy a handgun
from a federally licensed dealer.
Challenging that law is a case in the
U.S. District Court for the Northern District of Texas, Jennings v. Bureau
of Alcohol, Tobacco, Firearms and Explosives. Rebekah Jennings is an
accomplished competitive shooter and is joined as a plaintiff by other young
adults and the NRA, on behalf of our Texas members in the same age group.
This case is before U.S. District Judge Sam Cummings -- author of the 1999 trial
court opinion in United States v. Emerson (upheld on appeal in 2001),
holding that the Second Amendment guarantees an individual right to keep and
bear arms.
Also before Judge Cummings is a
related case challenging restrictions on the same young adults’ ability to carry
firearms outside the home for personal protection. In Jennings v.
McCraw, Rebekah Jennings, other plaintiffs and the NRA are challenging the
state of Texas’ law that denies concealed handgun licenses to most adults under
age 21. In addition to the age limit issue, this case also presents a
great opportunity for the courts to rule that the Second Amendment protects the
ability to carry firearms outside the home. Trial in this case is
scheduled for November.
Illinois – Statewide
Capping a quarter-century of
legislative victories on the right to carry firearms outside the home, Wisconsin
enacted one of the nation’s strongest “shall issue” concealed carry permit laws
in July. This left Illinois as the only state with a total ban on carrying
firearms for personal protection away from one’s home or place of business. To
change that, NRA-ILA is continuing to promote Right-to-Carry legislation at the
state capitol. But we’re also challenging in court.
The case is Shepard v. Madigan,
currently pending in the U. S. District Court for the Southern District of
Illinois. The lead plaintiff is church treasurer Mary Shepard, who, along with
an elderly co-worker, was severely beaten at her workplace by an attacker with a
criminal record. Ironically, Mrs. Shepard has carry permits issued by two other
states, but was left unarmed and defenseless by Illinois’ law. Her challenge --
in which the Illinois State Rifle Association, NRA’s state affiliate, also joins
as a plaintiff -- contends that Illinois’ carry ban cannot stand in light of the
Heller and McDonald decisions.
After the case was filed, the U.S.
Court of Appeals for the Seventh Circuit decided Ezell v. City of Chicago
(see discussion on Chicago litigation, below). Among the important
points in that decision was the court’s ruling that “broadly prohibitory laws
restricting the core Second Amendment right … are categorically
unconstitutional.” Based on that ruling, Mrs. Shepard’s attorneys have now
asked for an immediate preliminary injunction against enforcement of Illinois’
carry ban.
Illinois - Chicago
Politicians have taken the same
approach in Chicago, where just four days after the McDonald decision,
then-Mayor Richard Daley got a unanimous City Council to vote for a new law that
(among other things) prohibits possession of a gun anywhere outside the living
space of a home (even on a porch or in a garage). Chicago also banned all
gun stores and gun transfers (except by inheritance) in the city. The city
also required mandatory training in order to get a permit, including at least
one hour of live fire -- while also banning shooting ranges within the city
limits.
Four days after the council vote,
NRA-ILA supported a group of Chicago residents challenging the worst provisions
of the new law. Also joining the case of Benson v. City of Chicago
is the Illinois Association of Firearms Retailers -- a state affiliate of
the National Shooting Sports Foundation -- whose members would open gun stores
and shooting ranges in Chicago if not for the new law.
Fortunately for Chicago residents,
the shooting range ban was struck down on July 6 in Ezell -- a
case limited only to the shooting range issue. In its opinion, the U.S.
Court of Appeals for the Seventh Circuit ruled that “The right to possess
firearms for protection implies a corresponding right to acquire and maintain
proficiency in their use,” and noted that “It's hard to imagine anyone
suggesting that Chicago may prohibit the exercise of a free speech or
religious-liberty right within its borders on the rationale that those rights
may be freely enjoyed in the suburbs. That sort of argument should be no less
unimaginable in the Second Amendment context.”
While Ezell was not
NRA-ILA’s case, our more comprehensive challenge in Benson continues.
Chicago’s range prohibition was only one way in which the city is continuing to
thumb its nose at the U.S. Supreme Court and the rights of law-abiding gun
owners. As noted earlier, Chicago also bans gun possession not only
outside the home, but in parts of the home such as garages, porches and front
steps; bans nearly all firearm transfers and on the operation of gun stores; and
restricts each Chicago license holder to keep only one “assembled and operable”
firearm within the home. This case is in discovery through October, in
which both sides have the opportunity to demand documents and take statements
from opponents.
New York - Statewide
The state of New York requires a
premises permit in order to keep a handgun in the home for self-defense.
Thumbing its nose at the U.S. Supreme Court’s Heller and McDonald
decisions, however, New York refuses to grant this permit to anyone who owns
property in the state but does not reside there full-time. In other words,
if you own a house in New York but live there less than a majority of the year,
the state says that the Second Amendment doesn’t apply to you. This is a
clear violation of equal protection of the laws and the Court’s decisions in
Heller and McDonald.
To fix this gross injustice, NRA-ILA
is supporting the case of Osterweil v. Bartlett. Alfred Osterweil,
a retiree who moved to Louisiana but kept a summer home in New York, applied in
2008 for a license to keep a pistol on his premises, but was rejected because he
was no longer a resident. Representing himself, he filed suit in the U.S
District Court for the Northern District of New York in 2009. On May 20,
2011 the trial court ruled against him, based on a pre-McDonald case
that involved a nonresident seeking a permit to carry, rather than to possess a
handgun in the home.
Facing an appeal in the case, Mr.
Osterweil reached out to a lawyer who contacted us. NRA-ILA has assembled
a team of top-notch counsel to argue the key question: whether New York can
constitutionally deny a law-abiding citizen, who owns property and pays taxes,
the ability to possess a gun in his own home in the state.
California - Statewide
In 2009, anti-gun activists in
California won passage of a law that imposed draconian new controls on transfers
of “handgun ammunition,” including a complete ban on online and mail order
sales. The new law applied to all “ammunition principally for use in
pistols, revolvers, and other firearms capable of being concealed upon the
person”. As all shooters know, of course, nearly any caliber of ammunition
can be used in both rifles and handguns.
In the NRA-ILA supported case
Parker v. California, a group of plaintiffs -- including law enforcement
officials, ammunition dealers and the California Rifle and Pistol Association
Foundation –- successfully challenged this law, arguing that no ordinary person
can easily determine whether a particular kind of ammunition is “principally for
use” in handguns. The Fresno County Superior Court agreed and issued an
injunction blocking enforcement of the law. That decision is now on
appeal.
California – San Diego
California, like the handful of
“may issue” states, allows sheriffs and police chiefs to arbitrarily reject
carry permit applications from people who are fully eligible for permits under
state law.
In the NRA-ILA supported case of
Peruta v. County of San Diego, several individual plaintiffs (along with
the California Rifle and Pistol Association Foundation) are challenging San
Diego County Sheriff William Gore’s refusal to issue carry permits to qualified
applicants. Briefs are currently being filed before the U.S. Court of Appeals
for the Ninth Circuit. NRA-ILA is represented as an amicus curiae
(“friend of the court”) by former U.S. Solicitor General Paul Clement, who is
making the strong argument that restrictions on our Right to Keep and Bear Arms
must be reviewed under the highest possible level of judicial scrutiny.
The case is on appeal from a ruling
by the U.S. District Court for the Southern District of California. That
court came up with the notion that discriminatory permitting isn’t a burden on
the Second Amendment because California law allows a person to carry a loaded
firearm when in “immediate, grave danger,” and also allows a person to carry an
unloaded firearm openly. Therefore, claimed the court, “Should the need
for self-defense arise, nothing in [state law] restricts the open carry of
unloaded firearms and ammunition ready for instant loading.”
One can only hope that the Ninth
Circuit will take a more practical view of what is feasible in a self-defense
emergency. (To help with that, an amicus brief from the
International Law Enforcement Educators and Trainers Association, authored by
longtime Second Amendment scholar and NRA Publications contributor David Kopel,
includes links to online video demonstrations showing how hard it is to load a
gun while being physically attacked).
California – San Francisco
The right to own and carry guns
would be meaningless if we were deprived of the right to buy, use and possess
ammunition – let alone actually load our guns. That’s why anti-gun
activists have attacked ammunition for years with prohibitive taxes,
registration schemes and other ideas to make ammunition unavailable to ordinary
Americans. Today, your NRA-ILA is defending against two of those assaults
in court.
First is the case of Jackson v.
City and County of San Francisco, in the U.S. District Court for the
Northern District of California. The lawsuit challenges the city’s requirement
that all firearms be stored inoperable in the home, which makes them useless for
immediate self-defense -- exactly the type of restriction that the Supreme Court
struck down in its Heller decision. The case also challenges the
city’s prohibition on the discharge of firearms within city limits and its ban
on the sale of ammunition that “serves no sporting purpose” - in other words,
self-defense ammunition.
Our efforts have already forced the
city to amend its discharge ordinance to allow firearms to be used in self
defense, as well as in other lawful circumstances. The plaintiffs
are currently awaiting a ruling on the city’s motion to dismiss, which was
argued on May 5, 2011.
Washington, D.C.
Forbidden from banning handguns
outright, the nation’s capital now requires would-be gun owners to pay a series
of fees; pass a vision test, a training course, and a written test on D.C. gun
laws; be photographed and fingerprinted; and submit pistols “for a ballistics
identification procedure.” Anyone who gets through all this is subject to
re-registration every three years, with a new background check every six years,
and has to tell the police if he or she changes jobs, moves, or even decides to
keep the gun in a different part of the house.
Challenging those provisions in the
case of Heller v. District of Columbia (also known as “Heller II”) are
Dick Heller -- the lead plaintiff in the original case of District of
Columbia v. Heller before the Supreme Court -- joined by longtime civil
rights activist Absalom Jordan, Jr. and others. In addition to the rest of
District’s bureaucratic scheme, the District’s laws also denied the plaintiffs
the right to register commonly owned firearms that D.C. considers “assault
weapons,” or commonly owned handguns that use magazines that hold more than 10
rounds of ammunition.
Although the Supreme Court’s
Heller decision completely rejected the idea that rights could be
restricted based on an “interest balancing” review of committee reports and
other studies, the trial court in this case did just that, and upholding all of
the challenged laws. The plaintiffs appealed to the U.S. Court of Appeals
for the D.C. Circuit and are currently awaiting a decision.
Public Housing
When is your house not your home?
According to some local governments, when you live in public housing.
NRA-ILA has long fought against these gun bans, which target people who often
can’t afford to mount legal challenges on their own, and who often live in the
nation’s highest crime areas.
Most recently, in the NRA-ILA funded
case of Scott v. District of Columbia Housing Authority (filed July
22), a resident of Washington, D.C.’s public housing system is challenging lease
rules that forbid law-abiding residents from owning firearms for any lawful
purpose. The plaintiff, William L. Scott, is a 66-year old longtime tenant
who owns a rifle and two shotguns, all legally registered in the District and
formerly stored in his home.
In January 2008, the District imposed
a new lease provision that banned residents from possessing firearms.
Outrageously, the new rule was put in place months after the U.S. Court of
Appeals for the D.C. Circuit had held that the Second Amendment protects a
fundamental, individual right to keep firearms in the home for self-defense, a
decision later affirmed by the U.S. Supreme Court in its June 2008 Heller
decision. In 2009 (after prompting by counsel acting on our behalf), the
housing authority proposed a lease change to allow lawful gun possession in its
properties. More than two years later, however, that proposal has still not been
made final and Mr. Scott remains unable to defend himself in his own home.
Scott
is not our only recent case on this
issue. NRA-ILA successfully challenged San Francisco’s ban on firearms in
public housing immediately after the 2010 decision in McDonald.
We are also supporting a challenge to a similar ban in Wilmington, Delaware (Doe
v. Wilmington Public Housing Authority), in which the housing authority has
repeatedly amended its rules in an attempt to frustrate the lawsuit, while
giving no real relief to the plaintiffs.
Defending Pro-Gun Laws
Not all NRA-ILA supported
litigation is aimed at striking down bad laws. Often, we are forced to go
to court to help defend our pro-gun legislative advances.
For example, one of NRA-ILA’s
legislative priorities in recent years has been “parking lot” legislation that
helps secure the right of employees and customers to store lawfully owned
firearms in their locked vehicles while parked at businesses and other
institutions. When the University of Kentucky ignored that state’s law by
firing graduate student Michael Mitchell from his university job, we filed an
amicus brief arguing that both the state’s general gun transportation
law and its worker protection statute fully protected Mr. Mitchell’s right to
store his firearm in the glove compartment while on the job. The appeal in
Mitchell v. Univ. of Kentucky is currently pending before the Kentucky
Supreme Court.
Just as worker protection laws were
passed to protect the privacy rights of employees and customers, the Florida
legislature recently passed a law to protect patients from intrusive and
unnecessary questioning by doctors. Unfortunately, some physicians have
crossed the line between protecting patients’ safety and engaging in anti-gun
advocacy. To combat this, Florida’s new law prevents doctors from
discriminating against gun owners, harassing patients about their exercise of
the right to keep and bear arms, or retaining information about patients’ gun
ownership except when “relevant to the patient’s medical care or safety, or the
safety of others.”
Anti-gun medical groups and their
members sued the state, seeking an injunction to block enforcement of the law.
NRA-ILA sought to intervene in the case (Wollschlaeger v. Scott),
but that request was denied. As a result, the state will defend the law,
while we participate as amicus curiae, pointing out the many errors in
the medical groups’ reading of the law and their long history of advocating the
elimination of handguns from law-abiding Americans’ homes. A decision is
expected soon from the U.S. District Court for the Southern District of Florida.
Multiple Rifle Sales Reporting
In response to the Obama
administration’s recent announcement that it will force the reporting of
multiple rifle sales by federal firearm licensees in the Southwest border
states, NRA-ILA filed three lawsuits on Wednesday, August 3 in federal court in
Washington, D.C., Texas and New Mexico challenging the Bureau of Alcohol,
Tobacco, Firearms and Explosives’ authority to demand this information.
J&G Sales, Ltd. And Foothills
Firearms, LLC v. Melson; Ron Peterson Firearms, LLC v. Melson; and 10 Ring
Precision, Inc. v. Melson each
argue that the BATFE has no legal authority to require multiple sales reporting
of long gun sales and must cease from doing so. When Congress authorized
the reporting of multiple sales of handguns in the 1968 Gun Control Act, it did
not empower any federal agency to require similar reports for long guns.
Therefore, this recent action by the BATFE not only exceeds the Bureau’s legal
authority, but also circumvents the will of Congress.
NRA-ILA
Referrals and NRA-ILA Supported Litigation
Referrals
NRA-ILA maintains a list of attorneys who have identified themselves as willing
to consider cases involving NRA members. If a referral is given, the
member must negotiate fees and arrangements with the attorney directly. By
providing referrals, we are not endorsing or recommending any attorney on the
list for any purpose -- the attorneys on the list have simply asked to be placed
on our list but have not been vetted by NRA-ILA.
Supported Litigation: How NRA-ILA Accepts Cases
NRA-ILA cannot generally insert itself into litigation in which we are not a
party. In order to get involved, we must be invited by a party or the
court. Feel free to let us know about cases that may be of interest;
however, please do not contact us to become involved in cases to which you are
not a party.
NRA-ILA generally assists in cases
that affect the Second Amendment civil liberties or civil rights of large
numbers of our members and gun owners in general, rather than those involving a
dispute between individual parties. The basic questions we ask when reviewing a
potential case are:
Unfortunately, despite the thousands
of requests for assistance we receive each year, there are many legitimate and
compelling cases in which NRA-ILA is simply unable to assist, as we do not have
unlimited resources. We regret that we cannot provide assistance in many
cases even if they fall within the guidelines discussed above. To that end, we
encourage you to contact the NRA Civil Rights Defense Fund
(www.nradefensefund.org), which provides legal and financial assistance to
selected individuals and organizations defending their right to keep and bear
arms.
Important Note Regarding Deadlines
All legal claims have time deadlines. These deadlines may be different
depending on the nature of the issue and the parties involved. For some kinds of
civil cases, you may need to file a claim with a government agency before you
can sue, and agencies have their own time deadlines.
If you do not comply with the
applicable deadlines, you may be legally barred from pursuing your claim in
court. Contacting us to describe your problem does not mean that we represent
you, nor does it stop the statute of limitations from running. NRA-ILA cannot
give you advice about the specific deadlines that apply to your case. To protect
your rights, please consult an attorney promptly to find out what deadlines may
apply to your particular situation.