Must-Read: Calguns Litigation Strategy post-McDonald

Calguns Board Member the_quark posted a succinct and exciting explanation of what’s coming up. (That link’s worth clicking on; he’ll update it from time to time). Even if you live in a free state, it’s these lawsuits that will secure your rights forever. Have you DONATED yet to help this cause?
Example:

What Changes Does McDonald Cause In California Law, Today?
None. There is nothing that was illegal on June 1 that’s legal today because of McDonald.

Well, Then, What’s The Big Deal About McDonald If I Still Can’t Buy The Gun I Want?
Courts work through a system of precedents. If a superior court says an argument is invalid, it can’t be made again. Mr. Gura has been following a very clear and simple strategy to knock down the antis’ arguments, one at a time.Imagine it’s 1998. You’re arrested for Loaded Open Carry. You go to court, and say, “I have a Second Amendment to own and bear arms, this law is unconstitutional.” The other side would have said, “The Second Amendment confers a collective right to the states, not to an individual, so the law is fine,” and you’d lose and stay in jail.

Imagine it’s now 2009. You’re arrested for Loaded Open Carry. You make the same argument, and their reply is, “Well, obviously, he has an individual right to own the gun at the Federal level, but the Second Amendment doesn’t apply to the states, so the law is fine,” and you’d stay in jail.

Now, it’s July, 2010. You’re arrested for Loaded Open Carry. You make the same argument, and their reply is, “Well, obviously, he has an individual right to own the gun, and the Second Amendment applies that to the state of California, but Heller just says you have the right to keep it in your home for self defense, and he was out walking around,” and you’d stay in jail.

…

Imagine it’s now 2013. Alan Gura (or perhaps someone else) has won a case stating that, as a right that Fundamental to our system of ordered liberty, any restrictions on the right to keep and bear arms must pass the “strict scrutiny” test. You’re arrested for Loaded Open Carry. You make the same argument, and their reply is, “Well, obviously, he has an individual right to own the gun, and the Second Amendment applies that to the state of California, and he has a right to bear as well per the North Carolina case, but we have a compelling state interest in preventing people from running around in public with guns,” and the judge overrules them since strict scrutiny applies, and releases you, because they are out of arguments. Your lawyer puts together a Section 1983 Civil Rights lawsuit and recovers damages because your rights were infringed, and they train all their officers that Loaded Open Carry is legal.

Entire strategy post below the break.

STATUS OF CALIFORNIA LAWS FAQ

Since McDonald came out, I’ve seen a lot of the same questions over and over, and I thought I’d put together a little FAQ about the status of California laws after McDonald and what Calguns Foundation and other groups are doing to protect our Second Amendment rights. If you have further questions that aren’t on this list, just ask away in the thread. If I can answer it, and it belongs here, I’ll add it to the list.

Some of this post deals with ongoing litigation. This information was last brought up to date on July 3, 2010. The latest status on these items can generally be found at the Calguns Foundation Wiki:

http://wiki.calgunsfoundation.org/index.php/Main_Page

The focus of this post is not to give a detailed overview of every single case we’re working on. Rather, there seem to be a lot of questions about what is being done to challenge particular laws, and this is trying to answer those questions from the “What is being done to challenge the roster?” perspective, as opposed to the “What’s the status of Peña?” perspective.

What Was The Decision in Heller?
In Heller The Supreme Court held that the Second Amendment protects an individual right to keep arms for the primary purpose of self defense in the home. We’re optimistic that future decisions will make it clear it also protects more than this, but that’s the state of the law, today. Importantly, because this case was against laws in Washington, D.C., it only constrained the Federal government – not states, cities or counties.

What Was The Decision in McDonald?
In McDonald The Supreme Court held that the Second Amendment also applies to the states – that states, cities and counties may not pass laws that violate the Second Amendment.

What Changes Does McDonald Cause In California Law, Today?
None. There is nothing that was illegal on June 1 that’s legal today because of McDonald.

Well, Then, What’s The Big Deal About McDonald If I Still Can’t Buy The Gun I Want?
Courts work through a system of precedents. If a superior court says an argument is invalid, it can’t be made again. Mr. Gura has been following a very clear and simple strategy to knock down the antis’ arguments, one at a time.

Imagine it’s 1998. You’re arrested for Loaded Open Carry. You go to court, and say, “I have a Second Amendment to own and bear arms, this law is unconstitutional.” The other side would have said, “The Second Amendment confers a collective right to the states, not to an individual, so the law is fine,” and you’d lose and stay in jail.

Imagine it’s now 2009. You’re arrested for Loaded Open Carry. You make the same argument, and their reply is, “Well, obviously, he has an individual right to own the gun at the Federal level, but the Second Amendment doesn’t apply to the states, so the law is fine,” and you’d stay in jail.

Now, it’s July, 2010. You’re arrested for Loaded Open Carry. You make the same argument, and their reply is, “Well, obviously, he has an individual right to own the gun, and the Second Amendment applies that to the state of California, but Heller just says you have the right to keep it in your home for self defense, and he was out walking around,” and you’d stay in jail.

I know many of you are frustrated at this point, because “it never ends, we just keep filing lawsuits and keep not getting our rights back”. However, the analogy has been put out that this is like a chess game, and it’s a good one. You don’t win a chess game on the first move. In Heller, we took their queen. In McDonald, we took a rook. As we progress, taking their capital pieces, their defense gets weaker and weaker, more vulnerable to future attacks. Let’s see how the end-game might play out:

Imagine it’s now 2012. Alan Gura has won his North Carolina suit. You’re arrested for Loaded Open Carry. You make the same argument, and their reply is, “Well, obviously, he has an individual right to own the gun, and the Second Amendment applies that to the state of California, and he has a right to bear as well per the North Carolina case, but we have a compelling state interest in preventing people from running around in public with guns,” and you’d stay in jail (though you’re now at the point that you could reasonably mount a legal fight).

Imagine it’s now 2013. Alan Gura (or perhaps someone else) has won a case stating that, as a right that Fundamental to our system of ordered liberty, any restrictions on the right to keep and bear arms must pass the “strict scrutiny” test. You’re arrested for Loaded Open Carry. You make the same argument, and their reply is, “Well, obviously, he has an individual right to own the gun, and the Second Amendment applies that to the state of California, and he has a right to bear as well per the North Carolina case, but we have a compelling state interest in preventing people from running around in public with guns,” and the judge overrules them since strict scrutiny applies, and releases you, because they are out of arguments. Your lawyer puts together a Section 1983 Civil Rights lawsuit and recovers damages because your rights were infringed, and they train all their officers that Loaded Open Carry is legal.

But, They’ll Just Come Up With More Arguments!
Doubtless they’ll try something. But, from a legal perspective, every step they take, their arguments get easier to defeat and are legally weaker. We have a lot of great minds on our side that spend a lot of time trying to anticipate their next argument, and we’re pretty confident what’s left after we exhaust those arguments isn’t going to be very persuasive.

So, How Do We Know What To Challenge, Next?
We look at the argument the other side is going to make at each point, and we bring a carefully crafted case, with sympathetic plaintiffs to attack only that argument (as much as possible – sometimes it’s not possible to be that simple). Once we get to that final step – strict scrutiny for restrictions on “keep” and “bear”, applied to the states – then we can unleash the great flotilla of lawsuits to challenge every single law that is causing you heartburn. Until that happens, we need to restrict what we’re doing so the legal arguments we make are crisp, precise, and irrefutable.

Also, some cases are likely to be politically harder than others. The more solid precedents we have that we can cite that show that gun ownership is a fundamental right, the easier it will be to convince judges that they should allow some of the less politically favorable items to be legal.

What’s This Whole “Scrutiny” Thing?
Courts have found, over the past two centuries, that there are certain restrictions of fundamental rights that are allowed. Classic examples from the First Amendment are libel, and “shouting ‘fire’ in a crowded theater”. Courts attempt to balance how fundamental the right is, versus how bad the restriction is, versus how important the goal of the restriction is.

In general, laws have to have a “rational basis” – which, like most legal terms, doesn’t mean what your average non-lawyer would guess. In this case, it means “Can the legislature come up with some conceivable argument for why it’s a good idea?”

Above that is “intermediate scrutiny”, in which the government has to show that they have a compelling interest, and that the way they’re achieving that is substantially related to it. For example, under intermediate scrutiny they couldn’t ban the publication of all newspapers because they might contain libels.

The top level is “strict scrutiny”, in which the restriction must be “narrowly tailored” and be “the least restrictive means” to achieve the government’s goals. This is supposed to be applied if the right is “fundamental” to our concept of “ordered liberty” (for example, as is freedom of speech).

We don’t yet know what standard of scrutiny the courts will hold gun laws up to. We do know from Heller it won’t be “rational basis”, so it’s either “intermediate” or “strict”. Obviously, we want strict, but we’re optimistic most of the most onerous gun laws wouldn’t stand up to “intermediate”, either. One of our big strategic focuses right now is getting a case that is likely to get us “strict” scrutiny, as soon as possible. If we get that, we’ll be able to challenge a lot more, more quickly. There is some reason to be optimistic that it will be “strict”, based on the McDonald opinion’s constant referral to the right as “fundamental”.

Hey, This Alan Gura Guy Seems Pretty Good – Can We Get Him To Help Out, in California?
Alan Gura – the attorney on both Heller and McDonald – already works very closely with gun-rights organizations in California. He used to live here, and is well aware of the problems we face. Specifically, he works very closely with CGF – he’s the lead attorney on Sykes and Peña. Also, we coordinate broader national strategy with him – for example, if we know he’s bringing a big precedent-setting case in a more friendly jurisdiction, we may hold off bringing a similar case here.

When Are We Going To Challenge The California Roster of Handguns?
We already have. The case is Peña v. Cid:

http://wiki.calgunsfoundation.org/index.php/Pena_v_Cid

In this case we’re challenging four plaintiffs’ inability to purchase handguns they should be able to under Heller. As of July, 2010, this case is stalled pending an outcome in the Nordyke case, which was in turn pending McDonald. Now that McDonald is complete, we are optimistic we’ll get a decision in Nordyke in the next three months, and then this case can begin moving, again, but the timelines here aren’t as clear as we’d like them to be – it could be a year or more before the court gives us a decision in Nordyke.

When Are We Going To Get CCW?
Right now CGF has a case challenging some sheriffs’ issuance policies, called Sykes v. McGinness:

http://wiki.calgunsfoundation.org/index.php/Sykes_v._McGinness

This is challenging Yolo County and Sacramento County. This case was held pending McDonald; it should get moving again around August 27, 2010. We’re challenging in these two counties because we think we have a better chance of prevailing there (as opposed to a more urban area). Once we win these cases, we intend to take the precedents we win there back to the bigger cities with more cases.

There is a sister case to this, challenging a similar law in Washington, D.C., also lead by Alan Gura, called Palmer v. District of Columbia:

http://wiki.calgunsfoundation.org/in…ct_of_Columbia

In early July, CGN began an effort to get people who are in counties that are supposedly close to “shall issue” to make a concerted effort to apply for a Carry Permit for the good cause of exercising “my Second Amendment right of self defense”:

http://www.calguns.net/calgunforum/s…d.php?t=318081

If you live in one of the specified counties and want to help out, we’d love your assistance, check out the thread linked.

When Are We Going To Challenge The Mail Order Ammunition Law (AB 962)?
We are currently putting a challenge together for this. We need some very specific plaintiffs for the challenge we have in mind (truckers, essentially) and that’s slowed us down a little. However, the law doesn’t go into effect until February of 2011, so we still have a little time.

In June, 2010, Chaffin Law Office filed a complaint with the Federal Eastern District Court of California, alleging that AB 962 violates Due Process (void for vagueness) and the Commerce Clause:

http://www.calguns.net/calgunforum/s…d.php?t=318092

We’ll be watching this case closely and assisting in any way we can.

When Are We Going To Challenge The Waiting Period?
We’re optimistic on this one. Once we win “strict scrutiny” or even “intermediate scrutiny”, we should be able to say “there’s no compelling reason for this”, and that case should be a winner. We’ll have to wait for the strict scrutiny win, though (which could come from any number of current cases). Given that this case depends on a lot of other cases to win cleanly, we don’t know exactly when we’ll file it.

When Are We Going To Go For Loaded Open Carry?
We clearly are going to need to get “bear” to begin this attack. Mr. Gura’s recent efforts in North Carolina should establish that precedent, and do so in a jurisdiction that will be a lot friendlier to us than challenging here. Also, the outcome of Sykes may have some impact on this, as well as whether or not the legislature bans Unloaded Open Carry. There are too many moving pieces in the predecessor cases to predict exactly when we’ll file this, but know we’re thinking about it, and keeping our eyes peeled for an opportunity.

When Are We Going To Challenge The Assault Weapons Ban?
This also requires the “strict scrutiny” finding that’s an indeterminate amount of time in the future. Rest assured we really want to bring this case – we just want to make sure we win it when we do.

When Are We Going To Challenge the .50 Caliber Ban?
This can’t stand up to strict scrutiny, especially given that .510 DTC is legal. This also depends on a lot of previous cases to win, however.

When Are We Going To Challenge on Large Capacity Magazines?
This is an interesting case, because magazines aren’t firearms. This may have to wait on some more complex precedent, or take a more circular route. Again, we’re very interested in doing this, we’ve brainstormed a number of ways to approach it, but we’re not quite ready to do it, yet. The really good news here is that we have at least three possible approaches I’m aware of, and none of them preclude the others, so we can just keep swinging until we get it. Also, given everything else we’ve figured out how to open up in the past few years, it does seem like one of the less restrictive laws we’re facing, right now.

When Am I Going To Be Able To Purchase A Gun Out of California?
Right now this is illegal under Federal law, but there seems to be no intelligent basis behind it. Mr. Gura has been working a case, Hodgkins v. Holder for a while on this, but has been stalled out through jurisdictional issues. I’m sure this will start moving again as he has time.

When Am I Going To Be Able To Buy a Machine Guns?
Probably not any time soon, and definitely not through legal challenges. Our feeling at this moment is that these are losers in the court system. Maybe after we have enough precedents under our belt, we’ll think we have a shot at it, but right now the most effective things you can do to get a legal machine gun are to lobby Congress to overturn NFA, or move to a state that will let you get an NFA tax stamp.

What About Other NFA Weapons?
We think there’s no rational basis for allowing (say) AR pistols but not short-barreled ARs. Our intent is to build up some better precedent before tackling this, but we might be forced to move faster than we’d like, if someone gets arrested with one and needs our help.

What About Protecting Arms Other Than Guns?
A case in New York, Maloney v. Rice has just been released after McDonald. It covers New York’s blanket ban on the ownership of nunchaku. It’s hard to say how this case will fare, but it’s quite possible to be optimistic about it. If he wins it, it should help us a lot in those sorts of challenges – but, I’ll note, non-gun challenges are not the core mission of the Calguns Foundation.

What Are Other Organizations Up To?
Obviously, I can’t speak for them. I know various other people are mounting various other challenges, so it’s possible that you’ll see some of these addressed by others before we have time to fight them, ourselves. To the extent that happens, we’ll be happy to lend them our knowledge and perspective – I think I speak for everyone at CGF when I say that we don’t care who gets the credit, we just want our rights. I’d also like to explicitly note that many other groups out there, including, but not limited to the NRA, the CRPA and SAF are doing great work. Many of these organizations we work with, directly, and co-fund cases. This sort of parallelization allows all of us, as a movement, to do more, faster.