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By C.D. Michel – CRPA’s Legal Counsel for Litigation and Local Affairs

U.S. SUPREME COURT RULES THAT SECOND AMENDMENT LIMITS STATE AND LOCAL GOVERNMENT GUN REGULATIONS

In a 5-4 decision authored by Justice Samuel Alito, the U.S. Supreme Court ruled that the Second Amendment is “incorporated” into the Fourteenth Amendment, and thus protects against infringement of the right to keep and bear arms by state and local governments, not just the federal government. McDonald v. Chicago, 08-1521.

Perhaps most significantly, the McDonald decision makes clear that the right to keep and bear arms is itself “among those fundamental rights necessary to our system of ordered liberty.” Although the Heller decision recognized that the right to self-defense was fundamental, it never expressly recognized that the right to keep and bear arms was also fundamental. That distinction has been used by several courts to justify the application of a lower level of scrutiny of gun control laws in cases brought to challenge these laws since Heller, and may prove critical in determining that a higher level of scrutiny is appropriate in evaluating the constitutionality of gun control laws in future cases.


The McDonald decision does not mean that every state and local regulation of firearms will be struck down as unconstitutional, nor that any laws will be struck down overnight. Rather, the decision is a vehicle to bring legitimate strategic legal challenges to state and local laws before the lower level courts. These courts will have to define the scope of the Second Amendment right. Some questions that still need to be answered are: whether the right to keep and bear arms extends beyond the home, whether prohibitions of certain commonly owned firearm are valid, whether certain low-level criminal convictions can result in the permanent deprivation of one’s Second Amendment rights, etc. And litigation in the lower courts will be necessary to determine what level of scrutiny courts will apply in reviewing governmental infringements on the right to keep and bear arms.

Several such lawsuits have already been filed in California, including some by the NRA and the CRPA Foundation through their partnership in the California Legal Action Project. Those include Jackson v. San Francisco (a challenge to San Francisco’s ordinances requiring handguns to be secured in a safe or with a trigger lock in the home if not on one’s person, a prohibition on the discharge of firearms, even for self-defense, and a prohibition on “non-sporting ammunition”; Peruta v. San Diego County (a challenge to the CCW issuing scheme by the Sheriff there); and coming soon, CRPA Foundation v. Los Angeles (a challenge to that city’s ban on the transfer of “ultracompact” handguns, .50. caliber firearms and ammunition, and “Saturday Night Specials.” For more information on these lawsuits and to view the pleadings, search www.calgunlaws.com.


CRPA has been, and will continue, fighting for the rights of California gun owners on all fronts, including the courts. Visit www.crpafoundation.org for information on active and pending litigation.


NRA/CRPA FOUNDATION SUE TO STOP AB 962


The NRA/CRPA Foundation Legal Action Project (“LAP”) has filed a lawsuit challenging AB 962 and the newly adopted statutes that regulate “handgun ammunition.” The suit challenges the requirement that handgun ammunition be stored out of the reach of customers, the ammunition sales registration and fingerprinting requirements, and the bill’s prohibition on mail order and internet sales.

AB 962 places stringent regulations on “handgun ammunition” without providing adequate constitutional notice of what “handgun ammunition” is. The provisions of AB 962 that are challenged in the lawsuit define “handgun ammunition” as “ammunition principally for use in [handguns], notwithstanding that the ammunition may also be used in some rifles.” But the law does not provide notice to law enforcement, ammunition vendors, or regular citizens as to what calibers of ammunition are “principally for use in [handguns].”

The NRA/CRPA Foundation lawsuit, filed on June 17, 2010, has been in the works ever since AB 962 passed. A request for an injunction will be filed shortly, in an effort to stop the bill’s ammunition sales registration requirement and the ban on mail order ammunition purchases before those provisions take effect on February 1, 2011.

For months, LAP lawyers have worked to secure appropriate plaintiffs for this strategic litigation. 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 Collectibles, and individual Steven Stonecipher.


NRA SUPPORTING NEW LAWSUIT AGAINST CHICAGO’S NEW GUN BAN LAWS – CRPA FOUNDATION PLEDGES AMICUS SUPPORT

NRA is supporting a new lawsuit against Mayor Richard Daley and the city of Chicago’s newly adopted gun control ordinance that makes it almost impossible to get a license to have a gun in the city. The City Council rushed through passage of this ordinance just days after the Supreme Court’s June 28 decision rendering Chicago’s draconian handgun ban unconstitutional. The case is Benson v. City of Chicago.

Because the fundamental right to keep and bear arms is now recognized nationally at all levels of government, positive legal precedent in other states can benefit California gun owners. So CRPA Foundation has pledged to file amicus/friend of the court briefs when the time comes in this critical litigation. Sadly, most California politicians are every bit as hostile to the right to choose to own a gun to defend yourself and your family as are the politicians in Chicago. So a win there will send a message to California politicians that they cannot infringe on our rights, and will give us a powerful legal precedent to use in California courts.


NRA MAKES LEAD AMMO BANNERS BACK OFF FROM ENDANGERED SPECIES ACT LAWSUIT


Responding to court papers filed by the NRA in opposition to legal claims brought by the Center for Biological Diversity (CBD) under the Endangered Species Act (ESA), on Friday June 4, 2010 CBD revised its lawsuit against the U.S. Bureau of Land Management and the U.S. Fish & Wildlife Service (BLM, FWS) regarding BLM and FWS’ management of federal lands in northern Arizona (Center for Biological Diversity v. U.S. Bureau of Land Mgmt, et aI., 3:09-cv-08011-PCT-PGR).


CBD’s original lawsuit, first filed January 27, 2009, alleged that BLM and FWS are illegally mis-managing federal lands in Arizona. CBD’s claims were based in part on an incorrect belief that “any take of [California] condors from the use of lead ammunition would be a per se violation of the ESA.” CBD’s revised lawsuit drops the ESA claims that CBD was primarily using to seek a ban on the use of lead ammunition for hunting on those federal lands.


CBD contends that California condors in Arizona and elsewhere are becoming ill or dying as a result of eating lead in scavenged game after being shot by hunters with lead shot or bullets. Thousands of documents collected by NRA through public records act requests over the last year dispute that claim and the faulty science it is based on, and plainly show that California condors were reintroduced to

Arizona based in large part on express promises by FWS and other agencies that the “reintroduction” would not impact hunting.

Because CBD has stated on the record that it “doesn’t make any apologies about” its “goal to ban lead ammunition[,]” the lead ammunition component of CBD’s lawsuit is likely to resurface in a different form or a different lawsuit. So the issue remains to be litigated. But NRA has at least been partially successful in getting CBD to back away from its most commonly used ESA based claims attacking hunters using lead ammunition.

The lawsuit is just one example of NRA’s efforts on behalf of hunters throughout the country. NRA will remain vigilant in fighting against CBD’s lead ban initiatives in this and other lawsuits, as well as in legislatures throughout the country.

NRA/CRPA FOUNDATION LEGAL ACTION PROJECT IN ACTION

There are many lawsuits already filed or planned to advance the rights of California gun owners being funded by the NRA/CRPA Foundation Legal Action Project (LAP). Through LAP, NRA/CRPA attorneys fight against ill-conceived gun control laws and ordinances, and educate state and local officials about available programs that are effective in reducing accidents and violence without infringing on the rights of law-abiding gun owners. Sometimes the chances of success are greater when LAP’s litigation efforts are kept low profile. But to see a partial list of the Legal Action Project’s lawsuits and recent accomplishments, visit crpafoundation.com. And please register at www.calgunlaws.com and www.crpa.org to receive updates on litigation as it is made available.


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