SCOTUS Cert Filed: SAF and Gura: Lane v. Holder

A

Al Norris

Moderator Emeritus
From the Second Amendment Foundation's FaceBook page, this announcement:

BELLEVUE, WA – The Second Amendment Foundation today filed suit in U.S. District Court in Virginia challenging the constitutionality of federal and Virginia provisions barring handgun sales to non-residents.

SAF is joined in the lawsuit by Michelle Lane, a District of Columbia resident who cannot legally purchase handguns because there are no retail firearms dealers inside the District. The Supreme Court’s 2008 Heller ruling struck down the District’s handgun ban, confirming that individuals have a constitutional right to possess handguns.

SAF and Lane are represented by attorney Alan Gura of Gura & Possessky, PLLC, who won both the Heller ruling and last year’s Supreme Court victory in McDonald v. City of Chicago. Named as defendants are Attorney General Eric Holder and W. Steven Flaherty, superintendent of the Virginia State Police.

“This is an important issue in the era of the national instant background check,” said SAF Executive Vice President Alan M. Gottlieb. “The NICS check should allow law-abiding citizens like Miss Lane to exercise their Second Amendment rights regardless their place of residence.”

“Americans don’t check their constitutional rights at the state line,” said Gura. “And since Michelle Lane is legally entitled to possess firearms, forcing her to seek a non-existing D.C. dealer to buy a handgun is pointless when perfectly legitimate options exist minutes across the Potomac River.”

“The Supreme Court has ruled that District residents have an individual right, protected by the Constitution, to have a handgun in their home,” Gottlieb noted. “The high court has also ruled that the Second Amendment applies to the states. Existing state and federal statutes violate both the spirit and letter of recent court rulings and the Constitution, and our lawsuit seeks to remedy that situation.”
Click to expand...

I've entered the data into the main 2A Cases thread and I'll be updating it when the Court docket becomes available on PACER.

As you may know, there is only a single FFL in D.C. He has lost his current lease and is currently looking for another place to do business. Mr. Sykes does not have a storefront, per se. What he does is to trafnser handguns from other FFL's into D.C. Since Heller, Mr. Sykes has facilitated over 1000 transfers (at a cost of $125 per transfer).

Since he has lost his lease, he has stopped accepting new transfers. This essentially means that D.C. residents have no legal means to acquire handguns for self defense.

Building upon the remand in Dearth v. Holder, the SAF is attempting to invalidate that portion of the 1968 GCA that requires you to be a resident of the State wherein your handgun purchase/transfer is made.

If successful, this will mean that any U.S. citizen may purchase not only rifles and shotguns, but also handguns from anywhere else in the U.S., from any FFL.
 
Does this become moot if the one dealer in DC manages to re-open or another sets up business?

I think this is a good idea but it may be a lot quicker to get congress to change the law to have handguns treated the same as long guns for out-of-state sales.
 
Short answer: No.

Mr. Sykes keeps no inventory. He uses his FFL merely to extract a fee (exorbitant, IMO) for the transfer. Residents would still have to shop out of State and pay to have the handgun shipped to Sykes, who would hold the firearm until the D.C. registration process was complete (and he had his $125 fee).

This issue was raised in paragraph 13 of the complaint.
 
Last Friday, 07-15-2011, a hearing was held on the PI by the plaintiffs. The judge, in open court denied the Injunction and dismissed the plaintiffs as not having standing to sue. The Judge then dismissed, as moot, all other motions.

Minute Entry for proceedings held before District Judge Gerald Bruce Lee: Motion Hearing held on 7/15/2011 re: 16 MOTION for Preliminary Injunction filed by Second Amendment Foundation, Inc., Amanda Welling, Welling Matthew, Michelle Lane (heard, findings stated, and denied), 25 MOTION to Sever Plaintiffs' Fifth Claim And To Transfer Litigation Of Plaintiffs' Fifth Claim To United States District Court For The District Of Columbia filed by District of Columbia. Appearances: counsel for Pltff and gov't. (Court Reporter R. Wilson.) (tbul, ) (Entered: 07/19/2011)

ORDER, for reasons stated in open court on 7/15/11, denying the 16 Motion of Plaintiffs Michelle Lane, Amanda Welling, Matthew Welling, and the Second Amendment Foundation for Preliminary Injunction, DISMISSING this matter and administratively closing this case, and denying as moot all other motions in this case: 20 Motion to Vacate; 21 Motion; 25] Motion to Sever. S/s/ by District Judge Gerald Bruce Lee on 7/15/11. (tbul, ) (Entered: 07/19/2011)

This case was filed last May. Two months and we are at the appeals stage. This is exactly what Gura and the SAF wants... Fast Tracked. And yes, Gura will appeal. Since there appears to be no written opinion, Gura will have to rely upon the records from the hearing. In other words, the Judge was smart enoufgh to not give Gura/SAF anything more than he had to, on appeal.
 
Don't mean to step on the toes of anyone, just did some checking for an update. 7/29/11 the appeal was filed, 8/1/11 the fees for the appeal were paid.

No shockers in any of that, just the cogs of justice turning albeit ever so slowly.
 
You're not stepping on any toes that I know of. Try as I might, I simply can't do it all!

Thanks for the heads up on the appeal.

To be sure, the wheels of justice just laid rubber on the road! Two months, from start to finish, in the district court is literally breakneck speed!
 
Alan Gura filed his opening brief at the 4th Circuit today.

In his inimitable style, he lays the groundwork for another possible Circuit Court win. Brief is attached.
 

Attachments

Is it just me, or did Alan Gura just call the whole pistol purchasing experience stupid?

I am no lawyer and my head usually hurts when I read these briefs, but his brief seems clear and spot on when it comes to the burdensome efforts some people have to go through.

QUESTION: If this case is won by Mr. Gura, will it become a case that can be used by the rest of the country to fight this requirement, or will it in effect, automatically place handguns in the same category as shotguns and rifles in regards to being able to purchase them in another state. (Will it depend on how high in the courts the case goes?)

(I believe the way Missouri law is written, I can purchase a rifle or shotgun in any state which physically touches Missouri. Or is this a federal law?)

Again, my thanks to you guys who work and explain these cases to those of us who have a hard time understanding all the legalese in them.
 
Under the 1968 GCA, Federal Law prohibited anyone from purchasing a pistol from out of State. rifle and shotgun purchases were limited to contiguous States.

Under the 1986 FOPA, the limitation on rifle and shotgun was repealed. However, many States had passed their own version of the 1968 GCA laws. When the FOPA went in effect, some States immediately repealed their rifle and shotgun bans. Some took a few years to do so. There are still quite a few States that have this law in effect.

If this lawsuit prevails on its merits, people will be free to purchase handguns from an FFL in any State, provided that the sale is lawful in both the State of the seller and the buyer. In other words, the federal ban on handgun purchases being restricted to your State of residence will be ruled unconstitutional. The law in VA will be struck, as VA is a party to the the lawsuit.

If the 4th Circuit agrees with Alan Gura's arguments and strikes the federal law, then that law (the federal law) is stricken throughout the entire US. The only State law that this will affect is the mirror law of VA (as they are a party to the suit and their mirror law is specifically targeted in this litigation).

However this case turns out (for or against us), it will be appealed to the Supreme Court.

Should this suit survive the SCOTUS challenge, then it will be a matter of litigating in the individual states. With the federal precedent being set that these laws infringe the core right, it shouldn't be too long a battle.
 
Today, the responses to Lane v. Holder et al, were due.

VA AG Flaherty has filed their response (still waiting for the US AG to file theirs). The VA brief is interesting and they state a good case that the District Court was correct to dismiss for lack of standing.

All that I can see that remains are the 18 U.S.C. § 922 implications.
 

Attachments

The US AG's brief came in late last night.

As one might expect, it deals heavily with protecting the existing firearms framework of the GCA/922 laws. The plaintiffs lack standing and the laws do not overly burden the RKBA. Should the Court find standing, in the alternative even if the laws implicate the right, they are constitutional and at most, intermediate scrutiny applies.

Where have we heard this tune before?

Quite frankly, under current Interstate Commerce interpretation, this suit will go nowhere.
 

Attachments

the laws do not overly burden the RKBA
Click to expand...

They a overly burdensome if you are out-of-state and need to buy a gun right now.

Is there a reason why intermediate scrutiny would apply here in lieu of heightened or strict scrutiny?
 
secret_agent_man said:
Is there a reason why intermediate scrutiny would apply here in lieu of heightened or strict scrutiny?
Click to expand...

Um, because they just set the court up to use the 2A-two-Step.
 
On Tuesday, Nov. 22nd, 2011, Alan Gura filed the reply brief to the two responses in Lane v. Holder.

In regards the issue of Standing:

Plaintiffs’ standing is identical to that upheld in Dearth v. Holder, 641 F.3d 499 (D.C. Cir. 2011). Defendants’ efforts to distinguish this identical factual predicate—Holder’s use of Form 4473 to bar firearm transactions based on residence—are unavailing. As far as standing is concerned, this case is practically Dearth for all intents and purposes, only with respect to out-of-state rather than out-of-country residents.
Click to expand...

The defendants argument over the claim that (in the 60's) the Legislature was concerned over the inability of the States to do a background check on out of State residents.

Indeed, the interstate handgun transfer ban precedes the advent of the National Instant Criminal Background Check system by nearly three decades. And Defendants simply ignore the fact that gun dealers are already held responsible for following complex local restrictions binding long gun sales. Defendants fail to explain why the ability to understand and follow gun laws is proportional to barrel length.
Click to expand...

Gura is saying that the original legislative justification for the ban is now moot.

There is also an Alternative Universe argument towards the middle of the brief. Can you spot it?
 

Attachments

"Some of the wines plaintiffs want to drink are not carried by Indiana
resellers. That establishes injury in fact. Anyone who has held a
bottle of Grange Hermitage in one hand and a broken corkscrew in
the other knows this to be a palpable injury."
Click to expand...

Funny.
 
Back at the end of Dec., the Circuit was looking at a proposed window for Oral Arguments.

12/30/2011 34 CASE TENTATIVELY CALENDARED for oral argument during the 3/20/12 - 3/23/12 argument session. Notify Clerk's Office of any scheduling conflict by: 01/09/2012 [11-1847] (JLE)
Click to expand...

Now, as far as I knew, Nordyke, Peterson and Lane were all scheduled for the week of 03/19.

So on 01/09, we get this on the 4th CCA docket:

01/09/2012 35 NOTICE RE: CONFLICT WITH PROPOSED ARGUMENT DATES by Appellants Michelle Lane, Second Amendment Foundation, inc., Amanda Welling and Matthew Welling. Argument Session: 03/12 Days you are available: 3/21/12-3/23/12 Other scheduling information: Not available 3/20 owing to 2pm argument 3/19 in Denver, Colo. [11-1847] Alan Gura
Click to expand...

Did you catch that? Not available 3/20 owing to 2pm argument 3/19 in Denver, Colo.

So, the question is, What is Alan Gura doing in Denver with Gray's Case (Peterson)?

The answer lies with a post I made in the Main 2A Cases Thread, here. In that post, I announced that 10 minutes of the Oral Argument would be set aside for arguments by amici curiae. What I/we didn't know was who the amici would be.

It now appears that Alan Gura will argue for amicus CGF/SAF.

We still don't know if all the amici will share that 10 minutes or if each amicus will receive 10 minutes.
 
You must log in or register to reply here.
Back
Top