Alan Gura

12 posts
Civil Rights

Palmer v. D.C.

In 2008, the Supreme Court ruled that Washington D.C. could not ban the ownership of handguns. The city responded by passing the hysterically-named Firearms Registration Emergency Amendment Act [pdf]. It created as many hurdles as legally feasible for would-be gun owners. and it prohibited the carry of firearms outside the home.

Alan Gura brought this case in response to the ban on carry. The District Court did its best to ignore it for two years. In 2011 Chief Justice Roberts intervened and ordered Judge Scullin to hear it. Then it seemed to disappear again.

As such, it goes without saying that today’s opinion [pdf] was unexpected. Cue the highlight reel:

In light of Heller, McDonald, and their progeny, there is no longer any basis on which this Court can conclude that the District of Columbia’s total ban on the public carrying of ready-to-use handguns outside the home is constitutional under any level of scrutiny.

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Civil Rights

Chess vs. Checkers

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The big news today is that the Supreme Court declined to hear three cases involving gun rights. The first was NRA v. ATF, a challenge to 18 U.S.C. § 922(b)(1), which prohibits licensed dealers from selling handguns to individuals under 21 years of age. The second was Lane v. Holder, which challenged the requirement that handguns be purchased in one’s home state.

The third was NRA v. McCraw. At issue was Texas law, which denies a license to carry a pistol to anyone under the age of 21. To answer the central question of the case, the Court would have to rule whether the right to keep and bear arms applies outside the home.

So, does their refusal to grant cert mean the issue is dead? No. These were good cases, but none of them was the right case.

The Second Amendment Foundation and several others have been bringing another set of cases on the matter in the lower courts for three years now.

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Civil Rights

Kachalsky v. Cacase

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The Supreme Court’s decisions in Heller and McDonald affirmed an individual right to keep and bear arms. However, those cases only addressed a central issue of keeping guns in the home. Though the Court found the right to self-defense to be “most acute” there, in no way did either decision imply that it ended at the doorstep.

Yet Maryland, New York, New Jersey, and Illinois have all claimed that their arbitrary and burdensome systems of issuing (or rather, refusing to issue) permits to carry a firearm outside the home somehow pass constitutional muster. So, we’ve brought lawsuits. We won in the 7th Circuit, and we won in the 4th Circuit. New York? Not so well.

Last November, the 2nd Circuit ruled that,

Plaintiffs misconstrue the character and scope of the Second Amendment. States have long chosen to regulate the right to bear arms because of the risks posed by its exercise.

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Civil Rights

Ezell v. Chicago: Full of Win

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Does the right to keep and bear arms include the right to fire them?  According to today’s 7th Circuit opinion [pdf], it does.

In order to keep a functional firearm in the home, Chicago residents must acquire a permit.  Part of getting the permit involves proving proficiency through a live-fire course at a range.  However, the city has an ordinance that prohibits anyone from opening a range in which the average person can do so.  Read that again.  Yep.

The 2nd Amendment Foundation sought an injunction against enforcement of the ordinance last year, but Judge Kendall upheld its constitutionality in District Court.  The case moved to the 7th Circuit in April, and they were not pleased with the city.

Stung by the result of McDonald v. City of Chicago, the City quickly enacted an ordinance that was too clever by half. Recognizing that a complete gun ban would no longer survive Supreme Court review, the City required all gun owners to obtain training that included one hour of live‐range instruction, and then banned all live ranges within City limits.

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Civil Rights

Ezell v. Chicago Orals

In a way, this case is a rematch.  In one corner, we have Alan Gura, who represented us admirably in McDonald v. Chicago.  In the other corner, we have Chicago counsel James Feldman, who utterly crashed and burned in his attempts to argue the city’s claims in that case.  Apparently, Feldman isn’t willing to settle for one failure in front of the nation’s highest court, so he’s repeating it here.

The case at hand is Ezell v. Chicago, a challenge to Chicago’s ban on the construction of indoor shooting ranges within the city limits.  The ban presents something of a Catch-22, due to the Responsible Gun Ownership Ordinance (also known as the “We’re Cooperating As Little As Humanly Possible With The Damn Court” ordinance).  The Ordinance requires that registration of a handgun include

an affidavit signed by a firearm instructor certified by the State of Illinois to provide firearm training courses attesting that the applicant has completed a firearm safety and training course, which, at a minimum, provides one hour of range training

That’s a hard thing to do when there are no firing ranges around. 

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Civil Rights

Woollard v. Sheridan et Alii

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The 2nd Amendment Foundation is spearheading a lawsuit [pdf] to challenge Maryland’s rigid scheme on the issuance of concealed carry permits.  In short, a civilian seeking a permit for “personal protection” must show “documented evidence of recent threats, robberies, and/or assaults, supported by official police reports or notarized statements from witnesses.”

Plaintiff Raymond Woollard should therefore meet the criteria.  According to the complaint, his home was broken into on Christmas Eve, 2002.  Woollard was beaten by the intruder, and it took police over two hours to respond to his wife’s 911 call.  His assailant was sentenced to probation at first, then imprisoned after assaulting a police officer.

Upon the assailant’s release only three years later, Mr. Woollard was issued a permit.  In 2009, his renewal was denied by the defendants, who cited a lack of evidence to “support apprehended fear (i.e. – copies of police reports for assaults, threats, harassments, stalking).”

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Civil Rights

McDonald v Chicago: SAF Brief Submitted

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The Petitioners have published their final brief [pdf] in the case of McDonald v Chicago.  The brief is sharp, focused and well-argued, as I’ve come to expect of Mr. Gura.  It’s also unrelentingly meticulous in predicting and dismantling potential counter-arguments.

The first part explains the history and intent of the 14th Amendment.  To remove any doubt that “privileges” meant anything but “rights” to the drafters, he quotes Andrew Jackson Rogers, himself no friend to the idea of incorporation:

What are privileges and immunities? Why, sir, all the rights we have under the laws of the country are embraced under the definition of privileges and immunities. The right to vote is a privilege. The right to marry is a privilege. The right to contract is a privilege. The right to be a juror is a privilege. The right to be a judge or President of the United States is a privilege. 

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Civil Rights

Incorporation: a Brief Primer

McDonald v. Chicago has officially been docketed, case number 08-1521.  Notice the wording of the question presented:

Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses.

Though the Due Process clause is mentioned as a fallback approach, Gura’s case hinges almost entirely on the Privileges or Immunities clause.

Ideally, we’ll see Slaughterhouse overruled and the resurrection of the Privileges or Immunities clause it so wrongly gutted.  Cruikshank and Presser would logically follow, and we’ll see a return to the total incorporation model.

Civil Rights

McDonald gets Cert

The Supreme Court has chosen to hear McDonald v. Chicago next session.  Neither NRA v. Chicago or Maloney v. Rice have been consolidated with it.  As it stands, we’re left with Gura’s case, which is the strongest and, potentially, the most wide-reaching.

According to Gura, opening briefs are due November 16, and we can expect oral arguments in February.  A decision will be reached by June.

The scuttlebutt is that we’ll win.  This will be an interesting test for Justice Sotomayor, as she chose in Maloney to refuse incorporation based on precedent.  The only problem with the Supreme Court doing so is that the precedents against incorporation are incomptetent, morally loathsome and generally indefensible.  It will take a huge intellectual stretch for the Court to deny incorporation based on precedent.

As a Supreme Court Justice, Sotomayor no longer has the option of waffling.  She’ll have to take a stand one way or the other, and what she decides here will tell us more about her character and judicial philosophy than the Congressional hearings did.

Civil Rights

First Briefs for NRA/SAF v. Chicago

California Attorney General and former Presidential Candidate Edmund “Jerry” Brown has submitted an Amicus Curiae brief (pdf), asking the Supreme Court to hear the joint NRA and SAF suits against Chicago.  At first, it seems surprising and perhaps a bit heartening, but don’t worry, Brown’s got an agenda here.

It opens with the pronoucement:

(…) unlike many states, California has no state constitutional counterpart to the Second Amendment. Unless the protections of the Second Amendment extend to citizens living in the States as well as to those living in federal enclaves, California citizens could be deprived of the constitutional right to possess handguns in their homes as affirmed in District of Columbia v. Heller.

He points out that the Heller ruling failed, “to establish a standard of review applicable to asserted Second-Amendment infringements,” which is correct.  He also concurs with Halbrook and Gura that the current schism between the 9th Circuit and other circuit courts on the matter of incorporation can only be settled by the Supreme Court.

Civil Rights

Maloney v. Rice

Today’s the one-year anniversary of the Supreme Court’s decision in Heller v. District of Columbia. James Maloney, appellant in Maloney v. Cuomo, has filed a petition for his case to be heard before the Supreme Court next session. The case is now Maloney v. Rice (pdf). Kathleen Rice is the current District Attorney for Nassau County.

The petition follows and supplements the 14th Amendment claim Mr. Maloney made before the 2nd Circuit in February. It points out that the Circuit Courts are now divided three ways on the question of 14th Amendment incorporation, which would demand that the Supreme Court rectify this discrepancy. It’s worth noting that 7th Circuit Justice Easterbrook also acknowledged this disparity in NRA v. Chicago.

Maloney also recognizes the existence of the pending petitions from Alan Gura and the NRA, and he suggests consolidating all three:

Either or both of the pending petitions for certiorari on the Second Amendment incorporation issues arising out of National Rife Association would be fitting for this Court to grant because those cases present the same Fourteenth Amendment issues concerning applicability of the Second Amendment to the States invoked in this petition.

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Civil Rights

First Fallout from Nordyke

The ink’s barely dry, and there’s already a challenge to California’s practice of maintaining a list of “approved handguns.”

Defendant’s handgun roster program violates Plaintiffs’ rights to equal protection of the law as guaranteed by the Fourteenth Amendment to the United States Constitution, in that Defendant allows some people access to handguns barred to plaintiffs, and otherwise make arbitrary, capricious, irrational, and otherwise unjustifiable distinctions among the handguns that Defendant deigns to allow Plaintiffs in their exercise of fundamental Second Amendment rights. Defendant is thereby propagating customs, policies, and practices that violate the Fourteenth Amendment to the United States Constitution, facially and as applied against the individual plaintiffs in this action, damaging plaintiffs in violation of 42 U.S.C. § 1983. Plaintiffs are therefore entitled to permanent injunctive relief against such customs, policies, and practices.

Pena v. Cid [pdf], 9th Circuit, p. 10