February 6th, 2016

Maryland Gun Law Ruling — ‘Strict Scrutiny’ Should Apply

Court of Appeals Maryland 4th Second Amendment

Appeals Court Remands Decision for ‘Strict Scrutiny’ of Second Amendment Issue.
Earlier this week, the U.S. Court of Appeals for the Fourth Circuit overturned a Federal District Court decision finding the 2013 State of Maryland Firearm Safety Act (FSA) to be constitutional under “intermediate scrutiny” review. In the Case of Kolbe v. Maryland, the Appellate Court held that Maryland’s FSA should, as a matter of law, be subject to “strict scrutiny” under the Second Amendment of the U.S. Constitution. The Kolbe v. Maryland case was filed to challenge Maryland’s 2013 ban on so-called assault weapons and high-capacity magazines.

The National Shooting Sports Foundation (NSSF), which helped challenge the Maryland law, explained that this bodes well for those seeking to nullify portions of Maryland’s 2013 FSA which imposed broad restrictions on firearms including semi-automatic rifles. The NSSF reports:

The [Appellate Court] vacated the District Court’s denial of the plaintiffs’ claims and remanded the case to the lower court, ordering that it apply the appropriate strict standard of review.

Writing for the three-judge appellate court panel that heard the case, Kolbe v. Maryland, Chief Judge William B. Traxler wrote: “In our view, Maryland law implicates the core protection of the Second Amendment — ‘the right of law-abiding responsible citizens to use arms in defense of hearth and home, District of Columbia v. Heller, 554 U.S. 570,635 (2008), and we are compelled by Heller and McDonald v. City of Chicago, 561 U.S. 742 (2010), as well as our own precedent in the wake of these decisions to conclude that the burden is substantial and strict scrutiny is the applicable standard or review for Plaintiffs’ Second Amendment claim.”

“We are greatly heartened by the Fourth Circuit panel’s ruling today,” said Lawrence G. Keane, NSSF Senior Vice President and General Counsel. “As this important case goes forward, NSSF will continue to work with our co-plaintiffs to ensure that our citizens’ Second Amendment rights are protected and that the lawful commerce in firearms is restored in support of this constitutional protection.”

Response from NRA Institute for Legislative Action
Chris W. Cox, the executive director of the National Rifle Association’s Institute for Legislative Action, issued the following statement in reaction to the 4th Circuit Court of Appeals decision in Kolbe v. Maryland: “The Fourth Circuit’s ruling is an important victory for the Second Amendment. Maryland’s ban on commonly owned firearms and magazines clearly violates our fundamental, individual right to keep and bear arms for self-defense. The highest level of judicial scrutiny should apply when governments try to restrict our Second Amendment freedoms.”

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March 24th, 2013

Lawsuit Filed in Federal Court to Over-Turn New York’s SAFE Act

New York State Rifle Pistol Assn. logoLed by the New York State Rifle and Pistol Association (NYSRPA) and the NRA, a group of gun organizations filed suit on March 21, 2013, seeking to overturn the recently-passed New York SAFE Act. The pro-Second Amendment coalition filed suit in Federal court in Buffalo seeking to toss out New York’s new gun control law on a variety of constitutional grounds.

Specifically, the complaint states that the SAFE Act violates the Second Amendment as well the Commerce Clause of the U.S. Constitution. The Buffalo News explains: “The lawsuit says the gun law… violates the U.S. Constitution’s commerce clause, which empowers the federal government to regulate interstate commerce, because the law restricts interstate commerce by requiring private gun owners to go through dealers if they want to sell guns to a private party in another state.” Read Full Article from BuffaloNews.com.

NYSRPA President Thomas King says the SAFE Act infringes New Yorkers’ Second Amendment rights: “The U.S. Supreme Court affirmed an individual right to keep and bear arms in the landmark 2008 case of Heller v. District of Columbia and incorporated that decision to the states in the 2010 case of McDonald v. Chicago. These decisions apply to all New Yorkers”. Chris Cox, Executive Director of the NRA’s Institute for Legislative Action, added: “Governor Andrew Cuomo and the New York State Legislature usurped the legislative and democratic process in passing these extreme anti-gun measures with no committee hearings and no public input“.

Along with the New York State Rifle and Pistol Association, other plaintiffs in this action are the NRA, the Westchester County Firearms Owners Association, Sportsmen’s Association for Firearms Education, New York State Amateur Trapshooting Association, Bedell Custom, Beikirch Ammunition Corporation, Blueline Tactical & Police Supply, and three individual citizens.

Injunction Against SAFE Act Denied in State Action
In another related lawsuit, on March 12, N.Y. State Supreme Court Justice Thomas McNamara refused to enjoin implementation of the SAFE Act. That ruling applied to a lawsuit brought by Robert Schultz and hundreds of other private citizen plaintiffs. A motion had been filed asking the court to temporarily halt the SAFE Act on the grounds that the legislation had been rushed through, without proper consideration or the opportunity for citizen input. The judge denied the motion, holding that the Legislature was authorized by “messages of necessity” to enact the SAFE Act on a “fast track” schedule. Schultz stated that his group would appeal the ruling to the N.Y. State Court of Appeals: “We’re saying the language of the Message of Necessity has to match up with the legislation.”

READ More about Schultz Lawsuit in N.Y. State Court.

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January 18th, 2011

California Mail-Order Ammo Restriction Ruled Unconstitutional

Report by C.D. Michel
In a dramatic ruling giving gun owners a win in an National Rifle Association / California Rifle and Pistol (CRPA) Foundation lawsuit, this morning Fresno Superior Court Judge Jeffrey Hamilton ruled that AB 962, the hotly contested statute that would have banned mail order ammunition sales and required all purchases of so-called “handgun ammunition” to be registered, was unconstitutionally vague on its face.

The trial Court enjoined enforcement of the statute, so mail order ammunition sales to California can continue unabated, and ammunition sales need not be registered under the law.

The lawsuit was prompted in part by the many objections and questions raised by confused police, ammunition purchasers, and sellers about what ammunition is covered by the new laws created by AB 962. In a highly unusual move that reflects growing law enforcement opposition to ineffective gun control laws, Tehama County Sheriff Clay Parker is the lead plaintiff in the lawsuit. Other plaintiffs include the CRPA Foundation, Herb Bauer Sporting Goods, ammunition shipper Able’s Ammo, collectible ammunition shipper RTG Sporting Collectibles, and individual Steven Stonecipher. Mendocino Sheriff Tom Allman also supported the lawsuit.

The ruling comes just days before the portion of the law that bans mail order sales of so-called “handgun ammunition” was set to take effect on February 1, 2011. The lawsuit, Parker v. California, is funded exclusively by the NRA and the CRPA Foundation. If it had gone into effect, AB 962 would have imposed burdensome and ill-conceived restrictions on the sales of ammunition. AB 962 required that “handgun ammunition” be stored out of the reach of customers, that ammunition vendors collect ammunition sales registration information and thumb-prints from purchasers, and conduct transactions face-to-face for all deliveries and transfers of “handgun ammunition.” The lawsuit successfully sought the declaration from the Court that the statute was unconstitutional, and successfully sought the injunctive relief prohibiting law enforcement from enforcing the new laws.

Trial Court Agrees that Ammo Ban is Unconstitutionally Vague
The lawsuit alleged, and the Court agreed, that AB 962 is unconstitutionally vague on its face because it fails to provide sufficient legal notice of what ammunition cartridges are “principally for use in a handgun,” and thus is considered “handgun ammunition” that is regulated under AB 962. It is practically impossible, both for those subject to the law and for those who must enforce it, to determine whether any of the thousands of different types of ammunition cartridges that can be used in handguns are actually “principally for use in” or used more often in, a handgun. The proportional usage of any given cartridge is impossible to determine, and in any event changes with market demands.

Decision Will Probably Be Appealed but Law Will Still Be Suspended
Constitutional vagueness challenges to state laws are extremely difficult to win, particularly in California firearms litigation, so this success is particularly noteworthy. Even so, an appeal by the State is likely, but the Court’s Order enjoining enforcement of the law is effective immediately, regardless [of the possibility of appeal]. Editor’s Note: An injunction against the application of AB 962s provision will remain in effect until such time as it is vacated by an appellate court. But for the time being, mail-order ammo sales to California can proceed without restriction, as if AB 962 were never signed into law. Until a higher court rules otherwise, the contested provisions of AB 962 are rendered a nullity.

This report provided by C.D. Michel Michel of Michel & Associates, counsel for the NRA in the litigation challenging the California mail-order ammo ban.

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July 15th, 2010

Lawsuit Filed Challenging California’s Mail-Order Ammo Ban

handgun pistol ammunition AB 962When misguided legislators pass bad laws, sometimes the only thing to do is fight back — in court. We’re pleased to announce that two businesses and a USMC Veteran have filed suit in Federal District Court to strike down California’s AB 962. Passed last fall by California’s liberal-dominated Legislature, AB 962 would effectively ban mail-order sales of handgun ammunition in California. And, as the law is written, this restriction would include rifle ammunition that can be used in pistols. AB 962 would not only restrict the flow of ammunition into California from outside the state, but it would also prevent California ammunition-makers from selling their products to customers outside California.

The legal challenge to AB 962 relies primarily on the Commerce Clause of the U.S. Constitution. Article I, Section 8 of the Constitution delegates to the Congress the authority to regulate interstate commerce. Because Congress has been given power over interstate commerce, states cannot unduly burden interstate commerce. AB 962 runs afoul of the Commerce Clause because it effectively prohibits direct, intra-state shipment of ammunition to Californians. AB 962 also, arguably, blocks California ammo-makers from selling their goods to residents outside of California. Just imagine if New York passed a law barring Dell from shipping computers to New Yorkers, or if Florida blocked L.L. Bean from selling boots and clothing to Floridians. You can bet that Dell and L.L. Bean would unleash a battalion of lawyers to fight such legislation.

handgun pistol ammunition AB 962The two business plaintiffs, State Ammunition Inc. of Ventura, California, and A1Ammo of Minnesota, argue that AB 962 effectively prohibits them from conducting their business in interstate Commerce. State Ammunition alleges that: “StateAmmo.com will be unable to sell ammunition to purchasers in 49 other states, resulting in an immediate and devastating loss of income, business growth, good will and customers.” Likewise, A1Ammo asserts that it will “suffer irreparable harm” because AB 962 prohibits it from selling ammunition to customers in California. Plaintiffs also argue that AB 962 violates Equal Protection and Due Process rights by criminalizing sales of handgun ammunition to various prohibited persons without defining handgun ammunition, and without giving people to ability to know who is actually a prohibited purchaser.

Elimination of Mail-Order Sales Harms Organized Shooting Programs
A third plaintiff in the suit, retired Marine Corps Major Jim Russell of Fallbrook, California, asserts that AB 962 will interfere with legitimate shooting activities with no meaningful benefit to California. Russell, the Shooting Sports Director for the Paralyzed Veterans Association of America, claims that, as a result of AB962, he will be unable to purchase bulk handgun ammunition online which he uses to help disabled veterans with rehabilitative organized shooting activities.

handgun pistol ammunition AB 962Part of the new law is already operative — a requirement that pistol ammunition be keep behind counters rather than placed on open shelves. The more onerous parts of the law — the actual restrictions on sales — are slated to go into effect February 1, 2011. These provisions requires retail sellers to do background checks, take thumbprints, and check IDs of customers. This applies to “handgun ammunition” but that term is not clearly defined by AB 962. State Ammunition’s owner, Kevin Chaffin, who is also an attorney, explains that: “Vendors are required to guess what is or is not considered handgun ammunition, then after that guess is made, they are required to somehow determine the subjective intent of the ammunition purchaser.” Chaffin added that the law has already cut into his business, though all its provision are not yet effective: “Even the existence of the law is hampering business because so many people around the country have given up on California”.

CLICK HERE for Copy of Complaint in State Ammunition v Lindley.

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March 2nd, 2010

High Court Hears "McDonald v. Chicago" Today

Today, the U.S. Supreme Court is hearing oral arguments in McDonald v. City of Chicago, a major Second Amendment case that will determine whether cities and states must honor the Constitutional Right to keep and bear arms, set forth in the Second Amendment to the U.S. Constitution. It will be argued that the protections of the Second Amendment should extend to state and local government activity, based on the provisions of the 14th Amendment.

The key words from the 14th Amendment are “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law . . . . ”

McDonald v. Chicago

You can consider McDonald v. City of Chicago as the sequel to the 2008 landmark case — the District of Columbia v. Heller — in which the Supreme Court reaffirmed that the Second Amendment is an “individual” right to keep and bear arms. The Court’s decision, however, applied only to areas regulated by the federal government, such as the District of Columbia. As a result the Heller decision inspired further legal attempts to clarify how the right to keep and bear arms applies to citizens nationwide.

After Heller, many lawsuits were filed to overturn municipal and state laws that prevented individuals from owning handguns. In Chicago, several residents brought suit challenging the city’s long-standing gun ban. These residents, among them 76-year-old Otis McDonald, wanted a handgun to protect themselves and their families. McDonald, interviewed by ABC News, lives in a crime-ridden neighborhood and wants a gun to defend himself in his home: “If I’ve got a gun, and if others have guns in their homes to protect themselves, then that’s one thing that police would have to worry about less.”

How broadly or narrowly the Second Amendment will be applied to state regulations is the key question in today’s hearing in McDonald v Chicago. Today, one hour has been set for oral arguments. Attorney Alan Gura, who won the Heller case, will argue for the petitioners Otis McDonald, et al. Former U.S. Solicitor General Paul Clement will argue for the NRA, which is also a party to the case. Chicago’s defense will take up the remainder of the time.

Final Decision is Months Away
Legal experts will attempt to predict how McDonald v. Chicago will be decided, based on the questions/comments of the Justices during oral argument. However, we will have to wait many months before the Supreme Court’s actual written ruling. In a case of this significance, we can expect a lengthy written opinion (with dissents), that may not be issued until summer 2010.

Report and Photo Courtesy NSSF

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