23rd Annual Gun Rights Policy Conference
by Dave Workman
"...dragged into Second Amendment issues kicking and screaming."
Lott’s presentation was a perfect prelude to a panel on firearm civil rights and court strategies, featuring three lawyers: David Kopel, research director of the Independence Institute, David Hardy, producer of the video “In Search of the Second Amendment, and John Monroe, vice president of GeorgiaCarry.org.
Opening the discussion, Kopel said the Heller case victory was not just secured in court or by the hard work of the attorneys and their support staff, but also by years of preparation. He likened Gura, Levy and Neely as a commando team “with a whole army behind them.”
“One of the things we learned from this case is that in litigating gun rights, being right legally is not enough,” Kopel said. “You have to be extra right in order to have a chance of winning.”
Now is not the time for people to be launching a lot of their own cases, he cautioned, because the results could be disastrous.
“Don’t go off running your own pro se case because you think you happen to be right on the law,” Kopel stated. “You might theoretically be, but you’re not going to beat the government attorneys with anything less than a very, very strong case and if you can’t get a group like the Second Amendment Foundation (SAF) or National Rifle Association (NRA) or Institute for Justice or some other group that has a experience winning constitutional litigation cases to support the case, that’s probably a pretty good sign that maybe your heart’s in the right place and maybe the law should be the way you want it to be, but the chance of winning in court is not good, and in fact, is poor.”
He added that there is lots of bad legal precedent “on the other side” of the debate, that pro-rights attorneys like Gura, himself and Hardy will have to overcome.
“It was created by litigants just running out and just doing their own kamikaze or banzai charge in support of their own sense of moral rectitude rather than just as part of a long term litigation strategy,” he explained.
Hardy said the key to winning in court is to have good clients and a good case. He warned that courts are quick to reject cases on the basis of standing; that is, if the plaintiffs stand to suffer some personal legal injury because of some statute that is being challenged.
He pointed to the Heller case as a prime example. The original case involved six plaintiffs, but only Dick Anthony Heller survived as a plaintiff with standing because he had actually established the potential problems he would face if he tried to register a handgun in the District of Columbia.
Admitting that the standing issue is rather arbitrary and that gun cases seem to be treated differently than other cases, Hardy noted that some courts are reconsidering this disparity. But, he added, the right clients are important, and he suggested using the “shotgun approach” on cases by finding more than one client, all who face the same potential legal injury but whose circumstances are slightly different from one another.
There are also organizational standing issues, in which a group like SAF or the NRA files a lawsuit, based on the potential harm to their members. This was how the SAF/NRA lawsuit against the city of New Orleans following Hurricane Katrina made it to court.
Hardy called this the “poor man’s class action,” because it addresses the needs of many people without involving them all as litigants.
Monroe arrived at the conference on the heels of a stinging defeat in the Georgia courts involving a challenge to a ban on concealed carry in non-secure areas at airports. His group will appeal that ruling on the grounds of state preemption.
Meanwhile, Georgia Carry has racked up a string of victories, including state and federal rulings that the state must issue concealed carry licenses within 60 days of application, and other rulings that prohibit the state from asking for a Social Security number from a license applicant. The courts have also ruled that cities and counties cannot regulate the carry of firearms under state preemption.
Georgia gunowners face other challenges, though. Primary among those is a challenge to all probate judges on the issuance of carry licenses. Non-residents cannot get licenses, which effectively disarms them because in Georgia, people cannot carry guns openly or concealed without a carry permit.
“We are challenging the constitutionality of that,” he assured.
Now that the Second Amendment has been defined as affirming an individual civil right to keep and bear arms, the door is open to court challenges of various gun bans around the country, and one case now heating up in California could pave the way for incorporation of the Second Amendment to the states.
Virgil McVicker, president of the Madison Society Foundation, told the audience that his group was founded in 1996 to litigate cases on behalf of citizens charged with firearms law violations. In California, their activity has been aimed at over-reaching government. Over the past nine years, the Madison Society Foundation has become involved in “all kinds of cases” defending gun rights in California and across the country, he said.
The organization has been particularly active in supporting the plaintiffs in the legendary Nordyke case, now headed back to the US Ninth Circuit Court of Appeals. This time, however, the case has a new dimension because of the Heller ruling.
McVicker urged gun rights activists to financially support the Madison group because it will provide funds to fight the kinds of laws that led to the Nordyke case. There is no paid staff, and all the money goes toward litigation, he said. The society also provides scholarships to law students who support attorneys working on gun rights cases.
(Note: The Second Amendment Foundation has filed an amicus brief in the Nordyke case, written by Gura.)
Following McVicker to the microphone was California attorney Chuck Michel who led the recent battle striking down the San Francisco handgun ban. That case was a joint operation by the NRA, SAF, Law Enforcement Alliance of America, California Firearms Retailers Association and several San Francisco residents. It closely followed the same legal course that an earlier SAF case in the 1980s took when an earlier gun ban in San Francisco under then-Mayor Dianne Feinstein was struck down.
Michel noted that there have been, for years, “a lot of precision tools in the legal tool box we use.” With the Heller ruling from the Supreme Court, he observed, “now we have a big hammer” in addition to all those precision tools.
Michel is currently representing a coalition of gun rights groups including NRA, CCRKBA, the Pink Pistols and others in a challenge to the gun ban in public housing in San Francisco.
Focusing on the Nordyke case, Michel reminded the audience that “The only way (constitutional) amendments are applied to local governments is if they are incorporated under the 14th Amendment.” Without that incorporation, no part of the Bill of Rights would place restrictions on state or local governments.
If the Nordyke case provides that incorporation step, then gun rights challenges can be mounted against more restrictive laws, he intimated, and that “big hammer” will be the tool to make it happen.
Attorney Donald Kilmer, who argues constitutional cases, told activists that he was “dragged into Second Amendment issues kicking and screaming.” Now that he is involved in the fight, however, the litigator demonstrated he is up to the challenge by detailing the history of the Nordyke case.
There have been several phases to the Nordyke case, Kilmer detailed, beginning in 1997 when plaintiff Russell Allen Nordyke sued Santa Clara County over a lease provision that stipulated the county fairgrounds could not be leased to any organization that bought and sold firearms. This effectively banned gun shows on county property.
That lawsuit went forward victoriously on First Amendment grounds, but then bans were adopted in Los Angeles and Alameda counties, and challenges followed, with split results. The case currently being argued is with Alameda County.
“In order for (the court) to find in our favor,” he said, “they’re going to have to find that the Second Amendment applies to laws that are enacted by the State of California and the County of Alameda. That will take the very excellent work that Mr. Gura did in Heller and hopefully make it applicable to the entire 9th Circuit if we win the case.”
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