Chicago aftermath
Peruta v. San Diego gets lively
The Ninth Circuit just ordered both sides to brief the petition for rehearing en banc, noting that "A judge of this Court having made a sua sponte call for a vote on whether this case should be reheard en banc..." (in legalese, "sua sponte" usually means for a court to do something without being asked to do so -- in this case, after the motion was denied. At issue are the motions by California and Brady Center to intervene and take over the case, seeking the rehearing en banc that the Sheriff did not seek.
In a separate ruling, the Court allowed Plaintiffs to file quite long (35 pages) briefs on the question.
UPDATE: a description of what's going on. Basically,
The 9th Cir. has something like 28 active judges. The custom is that they divide into three judge panels to decide cases.
Peruta won before the panel. California cannot both (1) may "may issue" permitting and (2) ban all carrying, open or concealed, without a permit in incorporated cities and counties. The question was whether San Diego wanted to ask for en banc review (theoretically, before the entire 20+ judge court, but the Ninth Circuit is so big that en banc goes to 10 randomly selected judges and the chief judge). That's hard to get, really ties up the court, and usually it takes a conflict between two panel decisions to do it. Then en banc comes in to settle which panel decision should be the law of the circuit).
San Diego didn't want to try that, so it just let the time for requesting en banc pass.
California (and some antigun groups), which had never been involved in the case, filed motions to intervene and take over the case, so that THEY could ask for en banc. The argument was essentially, "we didn't join in this case earlier because we thought San Diego would protect our interests, and now it's not going to.
The panel denied the motion. California had simply waited too long. It could have gotten involved at any earlier stage, but passed it up.
California moved to take that decision, the denial of permission to intervene, and moved to have that decision taken en banc.
Apparently, at least one judge thought it was a good motion, so the court ordered both parties to brief it. Then they'll see if there are enough votes to grant it. It takes a majority of judges.
If denied, Peruta stands (altho two cases heard at the same time raising much the same issues might be taken en banc). If granted, California becomes the new defendant, and files its motion for rehearing en banc, and the court decides that. And of course after that, there's potential Supreme Court involvement.
Permalink · Chicago aftermath · Comments (3)
SAF files against Illinois yet again....
SAF, Illinois Carry, and Illinois State Rifle and Pistol have filed Culp v. Madigan (C. D. Ill.), challenging a feature of the new handgun carry permit system, adopted in the wake of prior legal challenges. The new system, for reasons that seem hard to understand, says that nonresidents can only apply for a carry permit if their own State has a handgun carry permit system substantially identical to that of Illinois. Attorney is David Sigale.
The suit should be a winner. It's hard even to understand how that limitation got in there. I can only guess that someone knew that carry permit systems often have reciprocity and that these provisions commonly limit recognition to permits issued by States with similar standards, or standards at least as strict as those of the State being asked to recognize them. But the provision here isn't a matter of reciprocity, but of which nonresidents can get an Illinois permit.
Permalink · Chicago aftermath ~ · State legislation · Comments (2)
CalGuns & SAF win against Calif. waiting period
Filed this morning, Silvester v. Harris (Eastern Dist. of Cal) looks like a solid win (after you go through all the pages detailing California's unbelievably complex answer to trying to prevent bad guys from buying guns). It finds the "cooling off" period rational for the 10 day mandatory waiting period to be unfounded, and basing the requirement on "we need the time for all the background checks" makes no sense when applied to (1) a person already permitted to own a firearm or (2) a CCW permit holder or (3) anyone whose background checks are completed in less than 10 days.
Reading between the lines, you can get a grasp of how much work went into this win. You don't base a winning record on "this is wrong, so let's sue and look for an obvious win."
Permalink · Chicago aftermath · Comments (1)
Palmer v. DC: a win!
Blog post and link to opinion here. District Court of DC rules that DC's requirement for a permit to carry, combined with its refusal to issue such permits, is unconstitutional, and (2) so is its ban on issuing permits to nonresidents.
A major advance that finally expands judicial recognition to "bear arms." And a success based on narrow targeting of the issues.
UPDATE: the opinion's signature reflecting Syracuse appears to be due to the fact that the judge is a Senior (entitled to retire, but choosing to stay on the bench) District Judge from the Northern District of NY. I assume DC is like Arizona; we often have visiting judges (esp. in the winter!) I wouldn't be surprised if he came to DC over the winter, and has now returned home.
Looking at his bio -- I've often felt that the 2A gets a fair shake, provided the judge is at least comfortable with firearms. The problem is that many judges have spent their life at driving ranges, not shooting ranges. In this case, the judge served as an Army officer, trained as a ranger and paratrooper, and commanded in Vietnam. He's not likely to get jittery over the concept of good people carrying guns for protection against bad ones.
Permalink · Chicago aftermath ~ · Heller aftermath · Comments (15)
Calif. AG moves to intervene in Peruta
Very strange. San Diego asked her to intervene at the trial court stage, and she did nothing. The trial court ruled, and she did nothing. The appeal was briefed and argued, and she did nothing. Now the appeals court rules against San Diego, the sheriff decides not to appeal and to issue permits on a "may issue" basis, and she moves to intervene in the case. It's a bit late.
Since the time to move for rehearing lapses, I think, today, and a motion must allow time for opposition and reply, I can only make two senses to it. (1) A publicity ploy (most likely) and/or (2) hope to be granted intervenor rights in time to file a petition for cert.. I think (1) is by far the most probable. Get turned down and say "I tried."
UPDATE: Here's the motion. California seeks to intervene in order to ask for en banc review. There might be another reason for the motion. Any judge of the Ninth can call for such review, and has another week in which to do so. This could be meant to alert the judges to the case and motivate them to ask for it. Although I'd assume this ruling was carried in all the mass media in San Francisco, so it's hardly likely the judges are uninformed here.
Quaere: since the Defendants have announced they will issue CCW permits to all law-abiding folks, is there even a "case or controversy" left, or is the case moot?
Permalink · Chicago aftermath · Comments (10)
9th Circuit reverses Peruta v. San Diego, strikes down "may issue"
Opinion here!!!!
California's handgun carry permit system says a permit may issue for "good cause," with a definition that is essentially "some special and exceptional reason beyond the average person's carrying for self-defense." The Circuit panel holds that a constitutional right cannot be so arbitrarily restricted. It's the first time a Circuit has accepted that (to my mind, very strong) argument. The opinion also accepts that the right to arms extends outside the home.
Hurrah!
Hat tip to reader Gene Hoffman, of Calguns Foundation.
Update: two of the three judges signing the opinion are Clinton appointees! (Correction: one of them is). Another update: correct, the Clinton appointee dissented. I missed that -- don't think I've ever seen a case laid out as majority opinion-list of counsel-dissenting opinion.
Permalink · Chicago aftermath · Comments (16)
New case on 2A and waiting periods
Handed down today. Suit filed to challenge California's 10 day waiting period. California moves to dismiss, and judge denies the motion. That's not the same as striking down the law, tho that might come later, but the judge does take intermediate review seriously. He notes that California argues for the law as (1) allowing time for a background check and (2) allowing a "cooling off" period, but provides no evidence that either requires a ten day wait.
Permalink · Chicago aftermath · Comments (0)
Calif Ct of Appeals rules semiautos are not protected
Decision here, in pdf. The court essentially seizes upon Heller language saying the right has some limits, and proclaims that semi-autos, or at least "assault rifles," are at least as "dangerous and unusual" as the short barreled shotgun involved in Miller.
The inclination of the court is obvious. The situation probably indicates how essential it is to "develop a record" at the trial level. What proportion of firearms are "assault weapons"? One of the answers is that over 20% of current rifle production is by manufacturers who make nothing but AR-platform rifles.
Permalink · Chicago aftermath · Comments (6)
Woollard case takes on a certain reality
Woollard challenges Maryland's "may issue" permit standards for most gun carrying, open or concealed. The main reason Woollard applied for the permit was a former son-in-law who had broken into his house and assaulted him, as I recall. He was granted a permit, but the government refused to renew it when it expired, since he could not sufficiently prove a continuing threat.
Last week, the former son-in-law assaulted Woollard's daughter, beat his parents with a pipe, and shot himself after a standoff with police.
Permalink · Chicago aftermath · Comments (1)
Illinois governor faces interesting choice
The Seventh Circuit struck the Illinois complete ban on carrying, with a stay on the ruling's effectiveness extended thru July 9. The legislature has passed a bill which provides for carry permits which (while it has exceptions) is an enormous improvement on the status quo.
The Chicago Tribune reluctantly endorses the bill, noting "Quinn doesn't have to seal the bill with a kiss. But he should take note of two realities. One, a veto would place Illinois at risk of having no law regulating the concealed carry of firearms."
Permalink · Chicago aftermath · Comments (3)
Illinois to the Federal courts: bugger off
The Chicago Tribune is reporting that
"Despite a federal ruling that Illinois' concealed carry ban is unconstitutional, police, prosecutors and judges alike say they are disregarding the finding and continuing to enforce the law — at least for now.
Police say they continue to arrest those who violate the state's ban on carrying a gun in public, and prosecutors continue to charge them. Backing up the authorities — but perhaps creating more confusion — a state court ruled last week that the federal decision is not binding on Illinois courts and upheld the nation's last concealed carry ban as constitutional."
Laws are for the little people, not the powerful ones....
Permalink · Chicago aftermath · Comments (5)
Discord over appealing Moore v. Madigan
Story here. The case struck down the Illinois system of no carry without a permit, and permits on a "may issue" basis. The governor says he wants to appeal, the AG doesn't want to.
Permalink · Chicago aftermath · Comments (3)
Another big day for the right to arms
Moore v. Madigan, the 7th Cir. ruling that struck down the Illinois law banning unlicensed carrying, with licenses on a may issue basis .... the State's motion for reconsideration en banc was denied. Now their choices are, go for cert. and face the risk the Supreme Court might take it, establish firmly that carrying outside the home is protected, and "may issue" doesn't suffice, or let a high favorable decision stand, one that will create future circuit splits, and hope they can control how the legislature rewrites the law.
On the other hand, the 10th Circuit in Peterson v. Martinez ruled that the Colorado CCW statute, which only allows permits to Colorado residents, did not violate either the right to arms or the Article IV ban on States discriminating against nonresidents' "privileges or immunities." It did suggest a different result might be had if the challenge were also to Denver's ordinance banning open carry, creating a situation where a nonresident could not carry at all.
Permalink · Chicago aftermath · Comments (2)
Amicus briefs in Kachalsky
Kalchalsky is the challenge to NY's Sullivan Act, which is a very broad, if not the broadest, type of "may issue" statute and relates to all handgun carrying. It now has a cert. petition pending.
Academics for the Second Amendment, authored by Joe Olson and myself.
Center for Constitutional Jurisprudence
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busy day for the Second Amendment
In Klachaksky, where the Second Circuit upheld the Sullivan Law's vague standards for issuing permits to carry, a petition for certiorari has been filed. That petition is the standard route for getting cases to the US Supreme Court, which can accept or decline them.
In Moore v. Madigan, which struck down the Illinois ban on carrying (open or concealed) without a permit issued on similarly vague grounds, the State has moved for en banc reconsideration, i.e., consideration by all the judges of the circuit, rather than the three-judge panel that heard the appeal.
In the latter case, Brady Center has filed an amicus. Interesting that it agrees that the issues are very important -- which would argue for a motion for cert. down the road, if Illinois is inclined to seek it.
Things are heating up!
Hat tip to Gene Hoffman of CalGuns....
Permalink · Chicago aftermath · Comments (6)
In the wake of the 7th Circuit ruling....
Otis McDonald is celebrating.
Chicago is not.
UPDATE: reader Eric sends the following, with regard to a bill that has been pending:
"Here is a link to the bill.
It appears to be shall-issue. It starts out talking about "permitting the sheriff" to issue licenses, as if there is discretion, but an amendment further down seems to require the ISP to issue a license thru the sheriff once a person meets qualifications."
Permalink · Chicago aftermath · Comments (3)
Astonishing ruling!
Moore v. Madigan, 7th Circuit. A long and well-thought out opinion, I'm only partway thru, but it strikes down Illinois' general ban on carrying open or concealed, and stays its mandate 180 days so the legislature can try to come up with something constitutional. The theme of the opinion is largely, "don't try to re-argue Heller, you lost that one, and we're going to apply it honestly."
The author is Judge Posner, who is no friend of the Second Amendment, but does believe in following precedent.
UPDATE: I think we have something of a Circuit split, between this and the 2nd Circuit's ruling in Kachalsky. The 2d Circuit treated right to carry very narrowly, "may issue" is perfectly OK, and the law can be justified by the fact that the legislature thought it was a good idea. Moore treats the right to carry much more broadly, and holds that restrictions must be justified by hard proof that there are benefits, not speculation. It's not a perfect split, but pretty close to one.
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Briefs in Woollard online
Gene Hoffman of CalGuns has them online. This is the challenge to Maryland's requirement to show "good and substantial reason" in order to get a handgun carry license (open or concealed carry).
Woollard lives on a remote farm; he was burglarized and attacked there (with police taking over two hours to respond). His attacker has a long record, and lives within three miles of him, and is now out of prison. He was denied a permit since he could not prove a threat outside of his own property. As his brief states, "To decide this case, it is enough to acknowledge what has long been established in our legal system: access to fundamental rights does not turn on some official’s whim. No “good and substantial reason” is required to exercise fundamental rights."
Permalink · Chicago aftermath · Comments (1)
Clever lawsuit from Georgia Carry
Petition for cert. here. It stems from a challenge to Georgia's ban on carrying in churches. Ordinarily, I'd not give that much hope of success. But Georgia Carry recruited a church pastor who wanted church goers to carry. Now it becomes a first and second amendment case, with the government telling a minister how to conduct worship services.
Permalink · Chicago aftermath · Comments (9)
Active day for 2A litigation
Nordyke v. King -- which has been pending for 13 years now -- has a petition for cert. pending before the Supreme Court. Because the odds of granting cert. are low, the responding parties often waive their right to file a brief opposing the petition. Alameda County did just that -- but today the Court ordered them to respond. Prof. Volokh just emailed a reference to a law review article that notes that an order of that type raises the odds of cert. being granted by a factor of four -- from 4% to 16%. So Nordyke *may* be the next Supreme Court 2A ruling, and it's certain that the Supreme Court is at least open to another 2A case right now.
On another front, the 9th Circuit has consolidated for argument three right to arms cases, challenging California's "may issue" handgun permit system, and set the argument for Dec. 6.
Permalink · Chicago aftermath · Comments (1)
Here's what I'd been working on...
I wasn't doing much blogging for several days, in order to produce this. It's filed in the Woollard case, which challenges the Maryland carry permit's being based on amorphous standards that amount to "we can deny permits to anyone, or grant them to almost anyone, so unless you're a good buddy, don't bother applying for one."
It's a BIG pdf that takes about 30 seconds to download. That's because there's 20+ pages of scanned paperwork in it.
UPDATE: Here's the brief it was opposing. Again, a big pdf. Both are online courtesy of Gene Hoffman of CalGuns. Here's a link to all, or I think all, the briefs filed.
Permalink · Chicago aftermath · Comments (5)
4th Cir. grants a stay in Woollard
Woollard held that Maryland's vague standard for a carry permit, good cause or something like that, was unconstitutional. Maryland appealed to the Fourth Circuit (in Richmond, VA) and the court today issued a stay, but also accelerated its consideration of the case:
"Upon consideration of the filings relative to the motion to stay pending appeal, the court grants the motion. The court further directs that this case be expedited and tentatively calendared for oral argument during the October, 2012 session of court, October 23-26, 2012.
Entered at the direction of Judge King with the concurrence of Judge Gregory and Judge Davis.
For the Court
/s/ Patricia S. Connor, Clerk
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District Court lifts stay in Wollard
The Woollard case involves Alan Gura's challenge to Maryland's basing carry permits on applicants showing a "good and substantial reason" for needing to carry, and the fact that this is an arbitrary restriction on exercise of a fundamental right. The US District Court struck down the restriction, and Maryland appealed. It sought a stay of judgment pending appeal, so it wouldn't be forced to issue permits without that requirement while the appeal was underway, and the Court ordered briefing. This morning the District Court ruled against the stay: "Having given due weight to the four Hilton factors, the Court determines that a stay pending appeal is not warranted. The Court will, by separate Order, lift the temporary stay now in effect."
Permalink · Chicago aftermath · Comments (2)
My draft article on McDonald v. Chicago is up
Online at SSRN, and in circulation to law reviews. " McDonald v. Chicago: Fourteenth Amendment Incorporation, and Judicial Role Reversals." I start off with a note that in McDonald, the liberal wing turned conservative, and the conservative wing liberal, with the most liberal justice, Stevens, rejecting all of the Warren Court decisions, and one of the most conservative justices, Thomas, becoming heir to the (on this issue anyway) very liberal Justices Black and Douglas. That and Justice Scalia discovered that precedent can trump originalism, while the liberal wing discovered the virtues of judicial restraint.
I found the dissent very, very, weak, and point out a few problems with the plurality. I also try to resolve what may have been the unuttered concerns of the plurality with privileges or immunities incorporation.
Permalink · Chicago aftermath · Comments (4)
Ill ruling: are "assault weapons" firearms in "common use"
In Wilson v. State, at 15-19 (I have the link open in one window, but it doesn't work in another), the Illinois Supreme Court remands to the lower court to determine that and a number of other questions. It notes that Cook County's AW ban is not like a handgun ban, in that handguns are the quintessential self-protection weapon, nor can it say from the record whether they are or are not "“dangerous and unusual weapons” that are “not typically possessed by law-abiding citizens for lawful purposes.”" So it remands for a hearing on these issues. It's very interesting that the court repeatedly notes there is no uniform definition of "assault weapon," so that statements about "assault weapons" in general are mostly meaningless, and that the court discusses whether the "dangerous or unusual weapon" concept was meant to be broad or narrow ("no flamethrowers allowed").
All this indicates the court is taking the right to arms issue quite seriously; if otherwise, it could just have brushed everything off with "this only bans assault weapons, which we all know must be terrible things, or they wouldn't have a name like that."
Hat tip to Gene Hoffman of CalGuns.
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MA gun ban for permanent resident aliens stricken
Fletcher v. Haas, ruling entered this morning. Brought by individuals and SAF and Commonwealth Second Amendment (altho the court holds that the organizations lacked organizational standing).
The ruling includes an interesting discussion of alienage and the voting franchise. The two were not anything near synonymous in the 18th and 19th centuries, since on the one hand many States and territories allowed some or all aliens to vote, and on the other women and minors, although citizens, did not get to vote.
Permalink · Chicago aftermath · Comments (5)
SAF win against NC emergency regulations
SAF and Alan Gura scored a win today in Bateman v. Perdue, E.D.N.C..
At issue were North Carolina statutes prohibiting carrying a firearm off one's own land during a declared emergency (which can be declared by the governor, or county, or city). The district court followed the 4th Cir. standard, which is (1) is the activity within the traditional right to arms, and (2) if so, apply the proper standard of review.
The ruling is significant in several ways. First, it recognizes that the right to arms is not limited to in-home possession. "Although considerable uncertainty exists regarding the scope of the Second Amendment right to keep and bear arms, it undoubtedly is not limited to the confines of the home." Second it recognizes that when the core right -- possession in the home -- is involved, strict scrutiny applies. Third, it applies strict scrutiny here because of the statute's breadth and the fact that it indirectly impacts possession in the home.
Permalink · Chicago aftermath · Comments (2)
Court upholds NYC $340 permit fee
Kwong v. Bloomberg, opinion here. The court finds that the $340 fee is meant to recover costs of administration, which the City claimed were actually a bit higher than this figure. Creative accounting, I suspect.
Permalink · Chicago aftermath · Comments (5)
2A victory in Maryland, Wollard v. Sheridan
District Court opinion here.
The Maryland handgun carry permit statute requires the applicant to show that he "has good and substantial reason to wear, carry, or transport a handgun, such as a finding that the permit is necessary as a reasonable precaution against apprehended danger." Plaintiff had had a home invasion, was issued a permit for a time, then was denied it since he could not show a current threat.
The court applied intermediate scrutiny, and notes that the requirement has no significant link to reducing crime. Rather it operates a rationing system. Maryland argued that guns in general pose risks -- law-abiding owners might not always be law-abiding, criminals might steal them -- to which the court responds that you could make the same argument to support a system which arbitrarily issued a permit to every tenth applicant. Maryland also argued that use in self-defense might escalate a situation or lead to accidental injuries -- to which the court replies that that is a peculiar argument, since the permit system supposedly ensures that carry permits go to those most likely to become a victim of crime, and thus most likely to use a gun in self-defense.
It's a great win, courtesy of Alan Gura and SAF...
Hat tip to Gene Hoffman of CalGuns....
Permalink · Chicago aftermath · Comments (5)
Nordyke to be argued yet again
En banc, or should I( say the latest en banc, is set for March 19 at 2:30 PM. Understand, the complaint was filed in the previous century...
Permalink · Chicago aftermath · Comments (2)
SAF collects another check
Story here. It's 16K from Omaha, over its ban on gun acquisition by legal aliens, not so impressive as its earlier collection of nearly 400K from Chicago. But sufficient to start sending a message: irrational gun control can hurt a city's bottom line.
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Appeal in Moore v. Madigan (Ill ban on carrying)
No Lawyers, Only Guns and Money, has the story. The case challenges Illinois' effective ban on all carrying of handguns. The trial court dismissed the case, with some extremely sloppy reasoning (along the lines of "McDonald just dealt with possession in the home, so anything beyond that is outside the right to arms" and "rights are not unlimited, this is a limitation, therefore it is valid" and even "I think plaintiff will lose at trial, so I dismiss his case right now."
A notice of appeal was filed within hours, so we can hopefully look forward to another stunning Seventh Circuit ruling.
Permalink · Chicago aftermath · Comments (2)
Excellent article on Heller/McDonald future
Hat tip to reader David McCleary.
Permalink · Chicago aftermath · Comments (2)
Cert denied in Masciandaro & Chein cases
Supreme Court order is here.
Masciandaro involved a fellow who parked overnight on Park Service land, in Virginia, with a firearm in the car, before that was legalized.
Chein was a challenge to a California court's imposing a no firearms possession condition as a condition of three years' probation for misdemeanor vandalism.
Permalink · Chicago aftermath · Comments (4)
A win in challenge to Omaha ordinance against legal aliens registering guns
A Federal District Judge issued a preliminary injunction forbidding enforcement of the ordinance, and the city is considering amending it.
Permalink · Chicago aftermath · Comments (2)
Good ruling from CA US District Court
Opinion here. Some open carriers, complying with CA law at the time, were handing out leaflets. Two officers approached them, apparently made critical statements about their activities, handcuffed and frisked them, then ran a records request and a check on the firearms.
They sued under §1983, and the court here denies a motion to dismiss their First, Second, and Fourth Amendment claims, and motion to dismiss on grounds of qualified immunity. The only thing the City won was that they can't recover punitive damages against it (though they can against the officers, which in practice the City winds up paying), and one paragraph of the complaint (which referred to one of the officer's having been sued by a girlfriend) stricken.
"Plaintiffs allege that after Defendants checked to make sure that Plaintiffs’
firearms were unloaded, Defendants went beyond the scope of a permissible search by running
background checks on them and serial number checks on their firearms, as well as handcuffing
Plaintiffs, ordering them to get on their knees, and forcibly removing Plaintiffs’ wallets without their
consent. Therefore, Plaintiffs have properly alleged a Second Amendment violation."
hat tip to reader Alice B. ...
Permalink · Chicago aftermath · Comments (4)
SG files opposition in gun in parks case
SCOTUSBlog has a link and discussion. The brief argues that (1) the regulation has been revoked by legislation, hence its constitutionality is not worth reviewing, and (2) the regulation could be justified under intermediate scrutiny.
UPDATE: I think he's referring to intermediate scrutiny, which is applied (as I recall) to most content-neutral time-place-manner restrictions on speech. I.e., you can't use a bullhorn at night in a residential area, and we don't care which side or what issue you speak on.
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Heller II and its implications
The Captain's Journal has some observations.
Permalink · Chicago aftermath · Comments (0)
Ruling in Heller II challenge to DC's replacement laws
Ruling by the DC Circuit is here.
On a quick read, it applies intermediate scrutiny. It picks up on the Heller language about longstanding regulations being presumptively allowable, and reads that broadly to mean regulations that have been around for decades, not those known to the Framers. (Why regulation of a right would be OK if the idea of regulation had been known for some time is unclear, but so is the reference to it in Heller). It concludes that DC's new registration requirements aren't supported by the present record and remands to take more evidence on them. On "assault weapon" and large cap magazine bans. It concludes those are "in common use" and thus protected by the right to arms, but that the ban survives intermediate scrutiny since other arms more suitable for self-defense are allowed and there isn't a showing that these are particularly suited for self-defense.
Judge Kavanaugh dissents (and the majority adds an appendix to reply to him). "In my view, Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny."
He goes on, in a very impressive opinion:
"The Supreme Court struck down D.C.’s handgun ban because handguns have not traditionally been banned and are in common use by law-abiding citizens, not because the ban failed to serve an important government interest and thus failed the intermediate scrutiny test. And the Court endorsed certain gun laws because they were rooted in history and tradition, not because they passed the intermediate scrutiny test.
One final aside about the appropriate test to apply: Even if it were appropriate to apply one of the levels of scrutiny after Heller, surely it would be strict scrutiny rather than the intermediate scrutiny test adopted by the majority opinion here. Heller ruled that the right to possess guns is a core enumerated constitutional right and rejected Justice Breyer’s suggested Turner Broadcasting intermediate scrutiny approach. And McDonald later held that “the right to keep and bear arms” is “among those fundamental rights necessary to our system of ordered liberty.” 130 S. Ct. at 3042.
For those fundamental substantive constitutional rights that the Court has subjected to a balancing test and analyzed under one of the levels of scrutiny – for example, the First Amendment freedom of speech and the rights protected by substantive due process – the Court has generally employed strict scrutiny to assess direct infringements on the right. See, e.g., Citizens United v. FEC, 130 S. Ct. 876, 898 (2010) (First Amendment strict scrutiny in context of infringement on “political speech”); Boy Scouts of America v. Dale, 530 U.S. 640, 648 (2000) (First Amendment strict scrutiny in context of infringement on freedom of association); United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813 (2000) (First Amendment strict scrutiny in context of content-based speech regulation); Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (substantive due process doctrine “forbids the government to infringe fundamental liberty interests . . . unless the infringement is narrowly tailored to serve a compelling state interest”) (internal quotation marks and alteration omitted); see generally Richard H. Fallon, Jr., Strict Judicial Scrutiny, 54 UCLA L. REV. 1267, 1271 (2007) (“the Supreme Court adopted the strict scrutiny formula as its generic test for the protection of fundamental rights”).""
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Sup Ct turns down State v. Williams
News report here. It was an appeal from a conviction for transporting a gun in Maryland, a challenge to "may issue" licensing. It's possible that the Court doesn't want another right to arms case just now, or that it saw cleaner cases (he'd been convicted, and had never applied for a permit) already on the way up.
Permalink · Chicago aftermath · Comments (0)
Challenge to 21 yr age limit for handguns denied
Story here.
San Francisco challenge: motion to dismiss denied
Order here. It's the [correction made] California Rifle and Pistol Assn/NRA challenge to San Francisco's ordinances, based on McDonald, and the court rejects a motion to dismiss for lack of standing. The ordinances require that guns be trigger-locked or stored in a locked container, ban the sale of ammunition that has no "sporting purpose," and prohibits all discharge of firearms (including discharge in self-defense).
It's especially good in that the court calls into question the continuing vitality of some 9th Circuit rulings on the issue. The 9th Circuit is one which has two entirely different bodies of law on standing. One that usually governs follows a correctly loose concept of standing: you have standing if you have to refrain from conduct because it is forbidden by a statute you argue is unconstitutional. The other body of law applies only to gun cases and a few other classes of cases that the 9th Circuit probably dislikes: you only have standing if the enforcing agency has been kind enough to give you a one-on-one guarantee that you will be prosecuted if you violate the law. Thus the agency can never be sued unless it is foolish enough to give you that, and to guarantee it. The 9th has never bothered to reconcile the two different standards it applies.
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District Ct decision in Kachalsky
In PDF. It finds that Plaintiffs pass all procedural hurdles, but rules the NY firearm carry permit system constitutional. It construes Heller/McDonald narrowly, refusing to go much outside the "core right" of having firearms in the home, and pays little heed to what I think was the key argument: the NY system vests almost unbridled discretion in the licensing official, to find or deny "good cause" for the permit.
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Calguns challenges arbitrary county obstruction of carry permits
The suit is Rossow v. Merced, brought by Jason Davis [thanks for the tip, Gene] and Don Kilmer. Complaint downloadable here. The gist is that Merced County is extensively violating California law by "may issue" permits, refusing to make public its policies on permit issuance, declaring a moratorium on permit approvals, and imposing requirements not allowed under State law.
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Cert reply brief in Williams v. Maryland
Steve Halbrook and Dan Peterson have filed a reply brief on their petition for certiorari in Williams v. Maryland, which upheld a conviction for carrying a handgun outside the home. When first I heard of the case, I was concerned about the defendant's having to challenge because he hadn't applied for a permit, but it looks as if they nailed that down, tightly.
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Interesting development in Palmer case
Palmer v. DC is a challenge to DC's effective ban on carrying. CalGuns reports that Chief Justice Roberts just assigned it to a Judge Scullin of the Northern District of NY, sitting in DC by designation.
Several other cases were assigned to him by the same order, so whether this has meaning or not is unknown.
Judge Scullin's Wikipedia page indicates he's from upstate NY, Army vet and reservist, US Attorney under Reagan, appointed to the bench by George Bush, Sr.
Hat tip to reader Nick L. EMT-P
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DC is getting desperate....
I'd say setting up an FFL in DC Police HQ, and expediting zoning clearance for any other FFLs, qualify as desperation moves.
Hat tip to Fiftycal from Austin, Texas....
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suit challenges illinois ban on carrying w/o a permit
It's Sheppard v. Madigan, filed in US District Court by NRA and ISRA. Press release here. Lead plaintiff is nicely chosen -- a church treasurer who was beaten and seriously injured while unable to carry a gun.
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Enos v. Holder survives motion to dismiss
PDF here. This is the California challenge to the Federal ban on possession by those convicted of misdemeanor DV, brought by Don Kilmer. The court refused to dismiss the right to arms count, while dismissing the others. It found that those plaintiffs who hadn't tried to buy a firearm and been turned down didn't have standing, but allowed filing of an amended complaint as to them (which will be done as soon as they can go out and try to buy a firearm).
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Ezell v. Chicago -- major win!
Pdf of today's opinion here. It cuffs the district court, tells it had better issue an injunction against the new Chicago ordinance (and dictates what the injunction should contain), treats standard of review in terms very, very favorable to anyone making a right to arms challenge, rebuffs the City's attempt to moot the case by changing the ordinance, rules broadly on standing to sue, and does a few other things along the way. Standard of review -- early Circuit case applied intermediate standard to prohibition on DV misdemeanant. This ruling does the same, but says that since the people here are entirely law-abiding, it should be a stricter form of intermediate, close to strict scrutiny. City must show that an entire ban on ranges is actually vital to public safety, which it has not come close to showing; all it could produce was speculation about safety. I'm sure it didn't help that the City does have police ranges and also two ranges for private security companies (despite the ordinance saying nothing about allowing private security companies to have ranges).
It responds to Chicago's argument that there are ranges outside city limits with a comparison to the city banning free speech and practice of religion, and arguing that's allowed because you can do both by leaving city limits.
UPDATE: what I meant by rebuffs is that Chicago this morning hastily passed a revision of the shooting range ban, plainly meant to moot the case [I had a link, but it's just been broken]. Perhaps they got word of the opinion that was coming down? In any event, they were pretty obvious. The news story notes, "the city wanted an ordinance in place so appellate judges might be less inclined to intervene with a less restrictive ordinance." It was a television site, NBC Chicago; likely hit the news this morning.
So the Seventh rebuffs the attempt by releasing its opinion, and gets the last laugh. The panel probably recall that the City similarly changed its handgun ban after the Supreme Court ruled, and then used that to argue against an attorneys' fees award.
And here's Josh Blackman's analysis.
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New CA case challenges DV conviction ban
It's Enos v. Holder, brought by Don Kilmer, and sponsored by the Madison Society. Complaint is here (scanned pdfs, so they load slowly).
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Motion for summary judgment in NYC case
NY State RIfle and Pistol Assn and SAF have moved for summary judgment in the suit challenging NYC's $340 permit application fee.
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McDonald v. Chicago followup
I find this Delicious.
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SAF, Calguns amicus in California permit case
Pdf here. It's by Alan Gura. Its main theme is VERY interesting. The central questions are standard of review, or as the brief phrases it, the means-end relationship. But, it suggests, requiring permits to carry should be compared to prior restraint of speech rights. Here, the permit system gives the issuer complete discretion. That should be invalidated, period. Only after a jurisdiction comes up with a permit system that is not arbitrary can or should a court get down to determining the means-end balance between the specific conditions and the problems supposedly addressed.
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Briefs in Peruta v. San Diego
Challenge to California's combination of "may issue" for CCW and its ban on open carry while gun is loaded.
CORE amicus brief, by Steve Halbrook;
NRA's amicus brief by Paul Clement.
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CORE amicus brief
Steve Halbrook has filed an amicus brief for the Congress of Racial Equality, in Peruta v. San Diego.
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Puerto Rican case recognized right to carry arms
Over at the Volokh Conspiracy, Eugene Volokh has a translation and a commentary.
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Judge rules there is no fundamental right to "bear" or carry arms
The case is Richards v. County of Yolo, and the pdf opinion is here. Josh Blackman has posted excellent discussion of the ruling.
On a very quick read, the court argues that Heller and McDonald only related to keeping in the home, and as to everything else.... the court essentially engages in circular reasoning.
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Yet another challenge
Just in ... SAF is challenging Illinois' ban on carrying, in Moore v. Madigan, filed yesterday. Attorneys are David Sigale, who has appeared in at least one other challenge, and David Jensen, from NYC.
UPDATE: Dave Workman has the details.
FURTHER UPDATE: NRA has filed one, too..
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More on the DC challenge to ban on interstate sales
Josh Blackman has details, including a link to the complaint.
I'd think it marks a tactical transition. Up to Chicago, things had to be a bit cautious. Heller and McDonald were by no means risk-free, but they were carefully focused and calculated, since a loss would have been very damaging. Now, the pro-2A side is free to roll the dice, since it's on the offensive and moving on many fronts. If this, or another challenge, does not succeed, it's not a major loss, and likely there will be a breaththru elsewhere.
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More on the DC challenge to ban on interstate sales
Josh Blackman has details, including a link to the complaint.
I'd think it marks a tactical transition. Up to Chicago, things had to be a bit cautious. Heller and McDonald were by no means risk-free, but they were carefully focused and calculated, since a loss would have been very damaging. Now, the pro-2A side is free to roll the dice, since it's on the offensive and moving on many fronts. If this, or another challenge, does not succeed, it's not a major loss, and likely there will be a breaththru elsewhere.
One complicating feature will be that the real reason for the ban on interstate sales to non-FFLs was a bit of history that its proponents couldn't afford to admit. It originated as a move by domestic gun manufacturers to eliminate their major rivals, the mail order houses. Pre-1968, a firearm was like most goods, something you could by locally, or by mail from out of State. Big mail order houses, mostly based in Chicago, were importing and selling military bolt action rifles that could be converted into good deer rifles. Mauser 98s went for about $25, Springfield '03s for about $40. Buyers would shorten the stock, improve the sights, and have a nice hunting arm for half what a factory rifle cost (then $100-150).
GCA 68 originated in a gun manufacturers' bill that would (1) outlaw interstate sales, (2) require the buyer to purchase in person from a licensed dealer and (3) ban surplus imports (the last was somewhat relaxed about twenty years ago). The combination killed off the mail order houses and channeled new sales thru the manufacturers' networks.
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Yet another legal challenge
Just in: an email from Second Amendment Foundation stating that they are challenging the ban on sales to nonresidents in the context of a DC resident who wants a handgun, but with the last dealer closing shop in DC, cannot legally obtain one. Attorney is Alan Gura. Considering the incredible number of post-Heller and post-McDonald challenges he's handling, I only wish I could find out where he gets his energy.
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MI court strikes law forbidding stun guns
Decision here. It's a trial court decision, and the prosecution has said it will appeal. The court notes that the law entirely forbids their possession, like the handguns bans at issue in Heller and McDonald, and raises in a fn the significance of Heller's reference to protecting guns "in common use" in light of the fact that a new technology may not go into common use simply because it's outlawed before it achieves that status.
Via the Volokh Conspiracy, where Prof. Volokh links to his Stanford L. Rev. article on the very subject.
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Suit challenges MA ban on legal aliens' gun ownership
Commonwealth Second Amendment and Second Amendment Foundation are challenging the Massachusetts' statute that bars legal aliens from purchasing firearms, and from possessing most types of the same. The complaint is here.
Hat tip to reader Terraformer...
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Post-McDonald suit challenges NYC permit fees
Press release describing the case is here; the complaint is here
Plaintiffs are Second Amendment Foundation, NY State Rifle and Pistol Association, and individuals. The challenge is to NY City's $340 charge for a three year "premises" permit, which allows possession in the home. An interesting issue is that (outside of NYC), premises permit fees are capped at $10, but the State law allows NYC to set whatever fee it desires. Hat tip to reader Nick L. ...
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Oral argument in the Ezell Chicago case
Audio here. I haven't had a chance to listen yet, but spectators say the court was down on the Chicago attorney like the proverbial duck on a June bug. Chicago replaced its handgun ban with an onerous licensing system, including a requirement for hands-on range practice, while at the same time the City has a ban on firing ranges.
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Glenn Reynolds & Brannon Denning on Heller and McDonald
Their latest article is here. It will be out in the Journal of Law and Politics later this year.
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Wisconsin trial court dismisses CCW charge
Story here. Defendant was carrying a handgun in his car, a few days after having been robbed at gunpoint, and was then searching for his stolen car, in a high crime area. The handgun was unloaded, although he had a magazine at hand. The court ruled that the statute was unconstitutional as applied to someone in this situation.
[error corrected, thanks]
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Ruling on right to arms and DV cases
United States v. Chester, handed down by the Fourth Circuit today. Defendant had been convicted of firearm possession after a misdemeanor DV conviction, and appealed. The Fourth Circuit initially vacated the conviction in an unpublished opinion that rejected the argument that the prohibition was justified under Heller's reference to "long standing" forms of gun regulation, and remanded, instructing the trial court to determine if there was any other justification. The Circuit then granted rehearing and entered this published decision.
The court initially deals with Heller's "long standing" regulations that are "presumptively lawful." It concludes that the first inquiry is whether the practice regulated lay outside the right to arms as originally understood. If it did not, then determine standard of review. The Court notes that scholarship is divided even as whether felons were outside the original right to arms, and there is no reason to believe misdemeanants were.
As to standard of review, the court notes that First Amendment restrictions are sometimes assessed under strict scrutiny and sometimes under intermediate review. Here, it rules, as one convicted of a violent misdemeanor, the Defendant is not within the core right which pertains to the law abiding, and the bar should be assessed under intermediate scrutiny.
But the court takes that seriously:
"Although [the various forms of intermediate scrutiny] differ in precise terminology, they essentially share the same substantive requirements. They all require the asserted governmental end to be more than just legitimate, either ‘significant,’ ‘substantial,’ or ‘important’ . . . [and] require the fit between the challenged regulation and the asserted objective be reasonable, not perfect."). Significantly, intermediate scrutiny places the burden of establishing the required fit squarely upon the government."
"We cannot conclude on this record that the government has carried its burden of establishing a reasonable fit between the important object of reducing domestic gun violence and § 922(g)(9)’s permanent disarmament of all domestic violence misdemeanants. The government has offered numerous plausible reasons why the disarmament of domestic violence misdemeanants is substantially related to an important government goal; however, it has not attempted to offer sufficient evidence to establish a substantial relationship between § 922(g)(9) and an important governmental goal. Having
established the appropriate standard of review, we think it best to remand this case to afford the government an opportunity to shoulder its burden and Chester an opportunity to
respond."
Judge Day concurs, but argues that the relevant standard should not be whether DV misdemeanants in general can be barred arms, but whether this particular defendant .... who was quite violent, and went beyond the bare "offensive touching" minimum of battery ... can be barred.
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Josh Blackman on Heller & McDonald
Josh Blackman has up an interesting post analyzing an ABA Journal article on those decisions. The gist is that the decisions, while recognizing a right, failed to give lower courts much guidance on they go from here. That might be because the Court itself wasn't sure, and figured the best course was to let the lower courts explore the issues for a time (an approach which lower court judges might find a bit frustrating).
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Mtn to dismiss denied in Illinois FOID card case
The district court has denied the State's motion to dismiss in Mishaga v. Monken, which challenges Illinois' requirement of an FOID card to possess a firearm, while at the same time making nonresidents ineligible to obtain such a card.
What I find interesting is that the judge suggests the parties should at some point argue whether there is a difference between possession in one's own home (Heller and McDonald) and possession while staying at someone else's home. I find that interesting because only a few years ago a right to arms challenge would have been laughed off, while today judges are treating it as something quite interesting -- "Can I make new law here? Is there some issue that I can be the first to explore?" When I went to law school in the 70s the rest of the Bill of Rights had some hot issues -- defamation, search and seizure, pornography, Miranda's application, 14th Amendment and the question of "State action." Today, they're all settled by thirty years of precedent. Not true of the right to arms!
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Maryland dragging heels in challenge to its "shall issue" carry law
Story here, at Only Guns and Money. The State filed a complex motion to dismiss Alan Gura's lawsuit, then when he filed a motion for summary judgment in return, suddenly begins squawking that his motion is too hasty and asks for a status conference.
(Blogging should pick up after this ... I can walk now, even if I can't get a shoe on the bitten foot, my brother in law is home from the hospital, and is up and walking after an experience that had a 6.7% chance of survival, my phone line is repaired, and the house repairs almost done. Whew!)
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DC court equivocates on right to arms and ammunition
Discussion over at The Volokh Conspiracy. It's Herrington v. United States, a conviction under the DC Code section that outlaws possession of ammunition unless the possessor has a registered arm in the same "gauge or caliber" (so might a person with a .25 auto own .25-06 and .257 Roberts ammo?)
The court holds that the 2nd Amendment would allow a ban on ammo not suited for a registered gun (assuming, it notes, that the registration requirement were lawfully designed) but that a government cannot put the burden of proving registration of a gun on the defendant ... it can't be illegal to possess unless defendant shows he has a registered firearm in that bore, it must be illegal to possess if the government proves possession and lack of registration beyond a reasonable doubt.
A minor advance (unless you happen to be the defendant here), but every journal proceeds one step at a time. A few years ago a hope that a D.C. court might even suggest that registration might be have constitutional problems would have been unthinkable.
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Status of challenge to NY's permit system
An update on the Kachalsky v. Cacace case, over at Guns and Money. NY plans to try every procedural ploy they can, and has gotten permission to file a 50 page brief, twice the normal size.
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Interim ruling in one of the Chicago II cases
Discussion of the evidence and ruling here. This isn't a final disposition by any means. A lot of test cases do get disposed of at the prelim injunction stage, but the judge rules that this is not one of those. To get a preliminary injunction, which would bar enforcement of the statute during the time while trial is pending, a party must show that they are likely (tho not sure) to win, and also that they will suffer irreparable harm if made to wait for trial, plus two other things. Otherwise, the usual rule of you win after trial and not before applies.
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Argument Monday in post-McDonald case
The case is State v. Charles Williams, pending in the Maryland Court of Appeals. I'm told Williams was charged with carrying without a permit, said permits being very difficult to get, and has raised the constitutionality of the requirement. I'd expect there will be procedural issues (e.g., an argument that he has to apply for a permit and see what happens, rather than breaking the law and raising it as a defense,
Argument will be broadcast live, here, at 10 AM EDT Thursday, October 7.
Hat tip to reader Alice Beard...
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Handy calendar of post-McDonald events
Only Guns and Money has a convenient calendar of upcoming events in the McDonald followup cases.
Strange to think back ... five years ago, no one would have foreseen any of the coming events. Even a year ago, the total of real right to arms (2nd or 14th Amendment challenges) was, what, McDonald and 1-2 other cases. Today you really need a calendar to keep track of the next right to arms courtroom event!
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Good timing....
The Bateman case is a challenge to North Carolina's statute that makes it illegal to carry a firearm off your own land during a declared emergency; defendants have moved to dismiss, as I recall. So here comes Hurricane Earl, and the governor's declaration of a state of emergency, three days before dove season starts.
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Surprise: Chicago rarely enforced it gun law
Story here, thanks to reader Joe Olson.
An interesting note toward the end of the article: Joyce Foundation gave the city $20,000 for its legal defense.
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Challenge to Chicago's shooting range ban
Motion for prelim injunction is here, in pdf. It points out that to get a handgun permit in Chicago, one must take at least an hour of range training, yet other provisions of the Chicago ordinances make this impossible -- shooting ranges are banned, possession of ammo for other than an already-registered gun is banned, etc., etc.
Hat tip to Gene Hoffman of CalGuns...
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Updates on Post-Chicago litigation
Only Guns and Money has the updates. Blogging has been a little slow here due to medical issues, work, and now my Comcast high speed is down after a lightning storm. Fortunately, I keep a dialup line as Plan B.
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SAF, Alan Gura, sue over Maryland carry permit denial
Story here. Again, a careful choice of plaintiff, facts, and law. Plaintiff had a permit to carry after his house was broken into; then renewal was denied for lack of demonstrated cause, even though the perp is now out of prison and living a few miles away.
And to think -- it was only a few years ago that Brady and others were suing gun manufacturers right and left, as part of a campaign to bankrupt the industry, a campaign that had a good chance of succeeding. Today, they're on the defensive (to the extent they act at all) and the progun side is on the offense. Since almost all of it has occurred over the last month or so, it's more than an offense, it's a legal blitzkrieg.
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Interview with plaintiffs in Westchester County case
Interesting interviews over at Only Guns and Money.
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Handgun ownership in Chicago
Daley's attempt to make registration onerous, rather than impossible, isn't succeeding very well.
hat tip to sixgun sarah....
UPDATE: I verified the url, using the very link that was emailed to me -- and suddenly it doesn't work. On a second try, five minutes later, it did. No idea why.
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Target: New York
Alan Gura and the Second Amendment Foundation have challenged New York's "good cause" requirement for a carry license. As usual, good targeting. It moves from "keep" to "carry," and aims at a system that requires exercise of a constitutional right to be authorized by permit, on the vague basis of "good cause." Which in this case the licensing authority translates into "good cause that is in some way exceptional, when compared to the good cause that is true of the population in general," or "extraordinarily good cause."
Hat tip to reader Nick L. ...
UPDATE: Only Guns and Money notes that one plaintiff earlier challenged the system in NY State courts, got to its highest court, which dismissed the case on its own motion for lack of a substantial constitutional question. The dissenting judge pointed out that the Supreme Court had already accepted McDonald v. Chicago, suggesting there might just be a substantial constitutional question here...
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Another Chicago suit
Complaint here, and here's the take at No Lawyers, Just Guns and Money.
Claims include an FFL's argument that the continuing ban on sale of handguns is unconstitutional, attacks on one gun a month and other provisions of the replacement ordinance, a class action for compensation for owners of guns confiscated under the invalidated ordinance, and some others. Tastes differ, but I think it could use a narrower focus.
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Development in Nordyke v. King
Nordyke is the incredibly long-lived challenge to a California ban on gun shows at a county facility. A three-judge Ninth Circuit panel had ruled that the Second Amendment applies to the States via the 14th, but that the ban was limited and constitutional. Then the Circuit voted, as a whole, for en banc review (meaning in most circuits, that the entire group of judges votes on it, but in the oversized 9th Circuit, it means the chief judge and ten others chosen at random, do so).
Today, the en banc panel voted to remand the case to the three judge panel for a ruling in light of McDonald. I've never seen this done before.
Hat tip to reader Gene Hoffman of CalGuns.
UPDATE: the only reading I can see is that the panel ruling, while upholding the law, fired up some anti-RKBA judges who weren't on the panel -- and enough of them to win a vote on rehearing en banc, where they could have a shot at reversing the panel. Now with McDonald, they know they have no chance at changing things, and have given up.