Current 2A Cases

OK then. does anyone but me think that the D.C. Circuits opinion in Dearth will be a win, not just for citizens living outside the US, but in an equal protection sense, all citizens?
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It would seem so. We now have a National Instant Check System. I can't imagine why purchasing a gun outside of one's own state should be an issue at all.

If a person who's not a resident of ANY state can buy a gun, I think state residency would be therefore irrelevant.

Example: I live in say, NY city. Let's say I don't own any guns there because I don't choose to jump through the city's hurdles to own one there, or maybe just don't feel the need.

But while on vacation in say, AZ, I wish to protect my family by concealing a handgun per state law. It is clearly my right to do so in AZ.

Leaving aside, for the moment, what I must do with the gun upon returning to NY to remain compliant, isn't it direct denial of my 2A rights to prevent me from purchasing a handgun in AZ?
 
Leaving aside, for the moment, what I must do with the gun upon returning to NY to remain compliant, isn't it direct denial of my 2A rights to prevent me from purchasing a handgun in AZ?
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I would say yes it is. Since the RKBA is an individual right based on the right of self-defense, prohibiting you from purchasing a firearm if legally eligible to do so would be a violation of the 2A. I thought Heller and McDonald clarified that.

{New, never opened box WordPerfect Office 2002 Professional for Windows sitting on my shelf. I'm a Windows Server Admin by trade}
 
Just a thought: Alan Gura repeatedly refers to his field of law as 'strategic civil rights litigation'. You can bet that Dearth is not just about one guy who lives in Canada.
 
Yesterday (04/-21-2011), in Schrader v. Holder, Plaintiffs (SAF/Gura) filed their Brief in Support of their MSJ, opposing Defendants opposition to their MSJ. It's #14 on the docket.

In the Defendants opposition, they made use of the 4th Circuits Coleman Case (United States v. Coleman, 158 F.3d 199 (4th Cir. 1998)), where the Circuit upheld a "Felon in Possession" analogy to misdemeanor crimes punishable by terms of one year or more.

Gura pounds on the idea that the Congress meant to strip a fundamental right from common law misdemeanants, when the historical facts are that common law misdemeanants were never stripped of their rights, as the Defendants claim.
The Government’s Attempt To Classify Schrader As A “Convicted Felon” Fails

Alternatively, the government invokes perfectly circular logic to characterize Schrader as a felon, claiming that “ecause Plaintiff Schrader’s admitted crime was subject to a term of imprisonment exceeding one year, which qualifies it as a felony under the definition in federal law, he should be considered to be a convicted felon for purposes of his Second Amendment challenge.” Def. Br. at 25. Thus, the government appears to take the position that the term “felon,” as used in Heller, does not mean “felon” in either the historical or literal sense (it is undisputed that Schrader’s conviction was a misdemeanor under Maryland law), but rather however the federal government chooses to define it. It further offers the proposition that “just because misdemeanants and felons historically lost different types of rights upon conviction does not prevent Congress from properly prohibiting firearm possession by misdemeanants today.” Def. Reply at 32.

In other words, the government can deprive anyone of a constitutional right by application of a label. If “felons” have no rights, and anyone is a “felon” if Congress says so, a prohibition leveled against any category of people — parking meter violators, the left-handed, etc.— can be bootstrapped into constitutionality. This would be a particularly unsatisfying method for defining the scope of a fundamental constitutional right. But more importantly, it is simply irreconcilable with the Heller opinion itself, which focuses on the historical scope and definition of the right to keep and bear arms, as well as its historic limitations. See Pl. Br. at 29-30.
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Gura also argues the type of Scrutiny to be used (Strict), as the law in question strips the core right of lawful possession for self defense from the Plaintiff.

In a separate filing (#15), Gura advises the court of last weeks decision (by the D.C. Circuit) in Dearth v. Holder, which shatters the Defendants position that Plaintiff lacks Standing (the DOJ has used this, successfully, in two prior attempts with this Plaintiff, by claiming that only D.C. is the proper venue. Now they are saying that pursuant to NavGear/Seegars they have no standing. Dearth moots this argument).

And finally, because the Defendants claim that nowhere in the Plaintiffs briefs, does he explicitly say he wants to possess a firearm now (disregarding the failed NICS checks as past injustices not at Bar), Gura motions to file a Second Amended Complaint with those very declarations.

Gura addresses this in the brief (#14), but to be sure the Defendant and the Court understands, the amended complaint spells it out.

The Defendants are naturally opposed to this.

My Opinion: Now that the D.C. Circuit has weighed in on Dearth, I suspect this Court to wait for the Palmer decision from Judge Kennedy. However it turns out, this case will go to the Circuit.
 
On 04-15, in Kachalsky v. Cacace, Gura filed a Notice of Newly Declared Authority (the appellate decision in Dearth v. Holder)....

On 05-02-2011, in Kachalsky v. Cacace, NY filed a similar notice (#76 on the docket) on a NY State case, People v. Hughes. The decision against Hughes was an "In the Home" argument.

Now, if I was an honest judge, which case would I take judicial notice of? A Federal decision in the D.C. Circuit or an NY State appellate case.... Hmmmm...

But I betcha that this NY court disregards the federal case in favor of its own State case. Any takers?
 
If there's any silver lining in the Alameda/Nordyke (gun-show ban) case, it may be that the county's no-firearms regulation may be more vulnerable to a straight 2A challenge.

Gun shows may not ultimately be protected by either the 2A, 1A, or 14A, claim (though that is yet to be seen when/if it either goes en banc or is granted cert). But as a straight keep and bear (outside the home), it may yet have merit.

See the SCOTUS Blog's take on it here: Circuit Court bolsters gun rights.

Excerpt from the SCOTUS BLOG article:
In an important sequel to the Supreme Court’s two decisions on the right to have a gun, the Ninth Circuit Court has made it easier for gun owners to challenge laws seeking to regulate how that right can be exercised outside the home. Although the ruling may ultimately mean that local governments may take action to limit gun shows, it reached that result after first raising the barrier that gun regulations have to clear in order to withstand a Second Amendment challenge.
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But with the other 'bear' cases now in front of it, it seems unlikely that 'Nordyke will be the case that carries the 'carry' ball upfield. Hopefully Williams, will be granted cert, as it is more of a pure 'bear' case.
 
As you may remember, the Nordyke decision came out last Monday (05-02-2011). The defense in Enos v. Holder immediately submitted two Notices of supplemental Authority, citing Nordyke (05-03-2011, #17 on the Docket) and Booker (#18 on the Docket), a criminal case from the 2nd Circuit, also filed on Monday the 2nd.

The court held a hearing on the 4th and ordered supplemental briefs from both sides (#19 on the Docket):

2011-05-04 19 0 MINUTES (Text Only) for proceedings held before Judge John A. Mendez: MOTION HEARING held on 5/4/2011 re 11 MOTION to DISMISS filed by Robert Mueller, III, Eric Holder, MOTIONS SUBMITTED: Further briefing, limited to 5 pages, to be filed by 5/11/11 and 5/18/11. Order to be prepared by Court in due course. Plaintiffs Counsel D. Kilmer present. Defendants Counsel E. Olsen present. Court Reporter: K. O'Halloran. (Vine, H) (Entered: 05/04/2011)
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Donald Kilmer must have been ready for this, as on the 6th, he filed his reply brief (which wasn't due until the 11th, btw). Since the defense brought up both Nordyke and Booker, Mr. Kilmer shows exactly how they can not be used as any kind of defense.

In Nordyke, Kilmer writes:

C. Nordyke does not advance the discussion in Enos v. Holder because the federal statutes at issue impose a complete ban on all of the Enos Plaintiffs’ rights associated with the Second Amendment. In other words, 18 U.S.C. §§ 922(d)(9) and 922(g)(9) are not mere “burdens” that make gun ownership/possession more difficult or more expensive, these statutes (1) prevent the lawful transfer of a firearm at the point of sale to any person convicted of misdemeanor crimes of domestic violence, and (2) if found in possession, these misdemeanants are subject to arrest, prosecution and felony conviction. This statutory scheme places the Enos Plaintiffs in the exact same position as the plaintiff in District of Columbia v. Heller, 554 U.S. 570 (2008), wherein the Supreme Court found that a complete ban offends the Second Amendment under any level of scrutiny. Heller at 628 et seq.

D. More to the point, the Enos Plaintiffs are not making a facial constitutional challenge of 18 U.S.C. § 922(d)(9) and/or § 922(g)(9), unless the rights restoration procedures under 18 U.S.C. § 921(a)(33) are definitively interpreted to mean that there is a life time ban on exercising the fundamental rights secured by the Second Amendment.​
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In regards Booker, Kilmer writes:

C. This is a case about the restoration of rights, it is not about the definition of misdemeanor crime of domestic violence – or the initial consequences (loss of gun rights) upon conviction of a misdemeanor crime of domestic violence.​
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There is more, of course, but Mr. Kilmer makes the defense look rather dumb for bringing notices about cases that do not help them at all. If anything, Nordyke helps the plaintiffs, as in the (paraphrased) words of the Nordyke panel, 18 U.S.C. § 922(d)(9) and/or § 922(g)(9) do much more than "burden" the core right, it bans the right altogether. Booker, on the other hand, is a complete wash. It has no bearing at all.

I can't imagine how the the defense is going to spin these, so I guess we will wait and see, on or about the 18th of May.

This is being funded by the Madison Society. If you have any spare cash (of just about any amount) and think this is a worthy piece of litigation, consider donating to them.
 
Friday the 13th Bonus!

If you have been paying attention, you will know that the IL legislature did not pass the Shall Issue CC bill, last week (it was actually placed on postponed consideration - under normal circumstances, this would effectively kill the bill).

It's Friday the 13th.... A couple of things have happened today.

This morning the SAF have announced that they have filed suit in Illinois over the Ban on Carrying Guns for Self Defense.

The complaint is here: Moore v. Madigan. Filed in the US District Court for Central Illinois. David G. Sigale (2nd seat; McDonald and Ezell) and David D. Jensen, lead counsel (and Counsel in the NJ lawsuit).

Also, the NRA announced they have filed a separate suit in the US District Court for Southern Illinois: Shepard v. Madigan. (if anyone finds the url for the complaint, please post it here).

Don't know how co-ordinated these are, but rumor has it that Gura and the NRA were talking recently.... Anyone want to bet that the legislation is gonna be reconsidered? I actually have no idea, but my inclination is that Cook County/Chicago will oppose (the legislation) at all costs; The State legislators who voted "no" will be able to tell their constituents that they tried, but the damned courts butted in. Win/Win politically.

At any rate, as soon as I can find them on PACER, I will update the main page.



In Richards v. Prieto, Donald Kilmer and Alan Gura filed a Notice of Supplemental Authority. It is a brief 3 pages where Gura uses the Nordyke decision to lock out the county of Yolo, CA. When life hands you lemons, make lemonade!
 
What's Happening Today, Monday May 16th.

First, in Hightower v. Boston, Alan Gura file his opposition to the City of Boston MSJ and reply to Plaintiffs MSJ. This was filed last Thursday, the 12th. Read it here. It's a good read, even if 30 pages long.

As you read this, remember that Gura is really writing to the Circuit Court of Appeals. So don't be surprised if the District court denies the Plaintiffs MSJ and grants Boston's MSJ. (there's a pattern here)

In Richards v Prieto (was Sykes v McGinness), Yolo County, the District court did almost exactly what the court in Peruta did. It ruled that the benefit of openly carrying an unloaded firearm was option enough for citizens to defend themselves. The decision is a painful read in how this Judge misreads Heller and McDonald in order to vindicate discretionary carry. Gura and Kilmer immediately appealed to the 9th Circuit.

And finally today, in Williams v MD the Supreme Court has requested that MD respond to the cert petition. More on this, what it means and the timeline in this thread.
 
Prieto and Peruta are amazing to me in that they both rely on the carry of an unloaded weapon as if that would satisfy the Heller requirement that the right include the use of a "functional firearm for immediate use for self defense".

DC's trigger lock and/or disassembly requirement was thus struck. An unloaded firearm is not immediately functional for the core self defense purpose of the right, but then, the court must know that.

Ironically, the CA legislature, by all accounts, is about to ban the very form of carry that the courts are saying make CCW bans constitutional: UOC (unloaded open carry). They apparently have more than enough votes to get it done, and it was barely defeated last term by fluke and luck (well, that and a lot of hard work by incredible CalGuns operatives) but it was a real squeaker.

I can only hope that the more blatantly incorrect and irrational the lower court rulings, the more opportunity there will be for the SCOTUS to set the record straight.

If stupid is supposed to hurt, then the next SCOTUS 2A cases should be excruciating for the lower courts. I've said it before, but I hope Scalia writes the next one. His sharp wit and tongue-lashing are sorely needed here.
 
Don Kilmer (CalGuns Foundation) has filed a request for rehearing and/or en banc for Nordyke. The filing can be read here.

The request asks 3 important questions about the decision rendered by the panel, with the first question being a real zinger:

(1) To consider the exceptionally important question of why – with respect to the Second Amendment, an enumerated fundamental right – the verb clause “undue burden” is an appropriate substitute for the verb “infringed.” (2) In order to insure uniformity of Ninth Circuit decisions, whether the test in U.S. v. O’Brien, 391 U.S. 367 (1968) used by the Nordyke panel is congruent with this Court’s en banc application of that test as set forth in Berger v. City of Seattle, 569 F.3d 1029 (9th Cir. 2009). And (3), to determine why the original panel treated Nordykes’ equal protection claim like a substantive due process claim.
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Chuck Michel (C.D. Michel & Associates) is the lead attorney for the California Rifle and Pistol Association (CRPA). With help from the NRA, the CRPA has filed its appeal in the Peruta (San Diego) case.

Krucam, over at MDShooters has uploaded the Complaint: http://mdshooters.com/attachment.php?attachmentid=38580&d=1306240964

This is a huge 143 page PDF, which I haven't had time to fully read. Here are the questions as presented in the appeal:

1. Does the Second Amendment right to “bear arms” protect the right to carry a loaded handgun in public in some manner, either openly or concealed?

2. Does allowing restricted open carry of unloaded handguns that may be loaded only after one is faced with “immediate, grave danger” provide a reasonable alternative means to bear arms, one that satisfies the Second Amendment right to be “armed and ready” for action in case of confrontation?

3. Was there undisputed, or any, evidence that openly carrying an unloaded handgun allows one to be “armed and ready” for immediate self-defense, or that reducing the number of law-abiding citizens permitted to carry loaded handguns (by denying them concealed carry permits) reduces crime or otherwise serves an important public purpose?

4. Do the classifications created by County’s concealed weapon permit issuance policies and practices violate the equal protection clause in light of recent Supreme Court authority that confirms the right to bear arms is fundamental?

5. Did the district court err in relying on cases distinguishing between residents and non-residents in granting County’s motion for summary judgment on Plaintiff Peruta’s right to travel, equal protection, and Privileges & Immunities claims, when no determination concerning his residency was ever made?
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Today, June 6th - A Heads Up!

Gray Peterson is expected to file his 10th Circuit appeal today.

Peterson v. Garcia (was Peterson v. LaCabe) - Challenges CO residency requirement for CCW.

If anyone sees the brief (and a link to it), please post it here.

Thanks.
 
Al must be busy...he posted this at MD Shooters but hasn't got it placed here yet.

Today, our friend Gray Peterson filed his Complaint on his Appeal in Peterson v LaCabe. The case is now called Peterson v. Garcia to reflect changes in the Denver Sheriff Dept and CO Dept Public Safety (?).
 
Lots of updates today.

First we have Peterson v. Garcia, initial appellate brief (attached). Note: I see Krucam beat me by 2 minutes!! :eek:

In Enos v. Holder (Lautenberg), the feds have filed a supplemental brief.

In Schrader v. Holder (ban for misdemeanor crime - not DV), Schrader has filed an amended brief. Nothing more than putting in what the DOJ complained about.

1. Plaintiff Jefferson Wayne Schrader is a natural person and citizen of the State of Georgia and of the United States. Mr. Schrader presently intends to purchase and possess a handgun and long gun for self-defense within his own home, but is prevented from doing so by defendants' active enforcement of unconstitutional policies complained of in this action.
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In Kwong v. Bloomberg (NYC licensing fees), some misc. filings and a scheduling order (appears to be fast tracked - this is good and what we want). Docket.

In Benson v. Chicago (NRA), Chicago is stalling by asking for yet another extension for discovery. Docket. See pdf filing #126. For a really brief and entertaining read (only 4 pages), see plaintiffs filing #129, protesting that this "need" for more time is all of Chicago's own making.

The only thing I've had time to read is the protest by Benson's attorneys, above. But there you have it!
 
Oh yeah.

Besides Peterson? Several of the cases are dealing with discretionary (may issue) carry. just off the top of my head (without looking back to the first 2 posts in this thread), we have: Peruta (CA); Richards (CA); Palmer (D.C.); Wollard (MD); Kalchasky (NY); and Muller (NJ).

One thing to remember, is that while the surface issue is licensed carry, the actual issue is a right to carry outside the home. Once that is established, then the licensing issues will fall into place.

None of these lawsuits are aimed at the district court level, and therefore, not at the districts themselves. The idea is to fail at this level fast, get to the appellate courts, and if necessary, to the Supreme Court... Which is what all these cases are aimed at.

If you read any of the briefs in light of the above, it makes much more sense as to the type and manner of the plaintiffs arguments. It is all aimed at building a record for the higher courts.

This is the difference in civil rights litigation and criminal defense.

Go back and read the Williams (MD) cert. This is a criminal case that Stephan Halbrook has turned into a civil rights case. Rightly so! If not for the oppressive laws of MD, Mr. Williams would never have been charged and convicted for carrying his new gun from his girlfriends house to his own, in his backpack.

The playbook for this style of civil rights litigation was written 50+ years ago by the NAACP. That's what we're seeing in 2A litigation, today.
 
And once bear is established outside the home, nationwide reciprocity will not be far behind. In the same way that fundamental rights don't cease to exist past my doorstep, they don't end at any state line. Get ready to suck it up CA, NY, NJ, HI, and a few others.

Then, good luck enforcing a 10 round mag limit for visitors from the 47 states that never heard of such a thing, but who will be entitled to carry nationwide.
:D
 
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