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Thursday, May 24, 2012
NRA File Legal Brief in Second Amendment Challenged to San Francisco Gun Control Laws
Copyright © 2012 Michel & Associates, P.C., All rights reserved. – Republished with permission from copyright owner
On May 17, 2012, attorneys for the National Rifle Association, the San Francisco Veteran Police Officers Association, and several San Francisco gun owners filed a Motion for Judgment on the Pleadings in their legal challenge to San Francisco’s "locked-storage" law, as well as the City’s prohibition on the sale of "hollow-point" ammunition and all ammunition that does not "serve a sporting purpose."
The lawsuit, Jackson v. City and County of San Francisco, was filed as a test case in May of 2009, before the McDonald v. Chicago decision in 2010, and in the wake of the 9th Circuit’s May 2, 2011 confirmation in Nordyke v. King that the Second Amendment is "incorporated", i.e., that it protects against infringements by state and local governments.
The motion [available here] asserts that the City has not raised a viable defense, and asks the Court to issue an injunction preventing enforcement and to declare the ordinances unconstitutional. At minimum, the motion will serve to narrow the issues, and to prevent the City from misdirecting the litigation with irrelevant distractions.
The Jackson case was strategically designed to, potentially, be the first case to address the "standard of review" applicable to Second Amendment challenges. The case is legally "cleaner" than many of the Second Amendment cases currently being litigated, as it does not raise issues about public carry, "sensitive places" where a firearm may or may not be possessed, or other issues that might make it easier for a court to water down Second Amendment protections.
The case was, unfortunately, stayed pending resolution of the McDonald case, which ultimately decided the "incorporation" issue at the Supreme Court level. The case was then delayed by multiple rounds of obstructionist preliminary motions filed by the City, including motions seeking to tie the case to a similar problematic case filed by a rogue attorney, who essentially cut and pasted from the Jackson case.
The NRA’s attorneys at Michel & Associates, P.C. have successfully defended against each of the City’s preliminary motions, and even secured an important published "standing" ruling [available here] that clarifies the rights of future litigants in the Ninth Circuit to bring Second Amendment challenges to unconstitutional restrictions on the right to keep and bear arms.
The NRA’s early litigation efforts in the Jackson case also forced the City to abandon its policy of outright banning the discharge of firearms, even in self-defense. Initially, the lawsuit included a challenge to the City’s ordinance completely prohibiting firearm discharges which had been in place for nearly 75 years. Facing this legal challenge, the City amended its ordinance and it now allows for discharges in lawful self-defense and defense of others, as well as all other circumstances allowed for under state and federal law.
While Jackson was delayed, a panel for the 9th Circuit adopted a framework for Second Amendment challenges in Nordyke that would afford heightened scrutiny only to gun control laws that impose a "substantial burden" on the right to arms. That opinion has since been set aside, however, and the District Court is now free to adopt its own standard of review in the Jackson case, possibly when it rules on the pending motion.
In addition to providing an ideal framework for the Court to address the standard of review issue, theJackson case is also aimed at developing Second Amendment jurisprudence regarding protections for arms that are in "common use," and the right to commercially transact in firearms and ammunition. Rulings on these issues could pave the way for future legal challenges by establishing important "building block" rulings in less controversial settings.
Seventeen years ago, the NRA and CRPA joined forces to fight local gun bans being written and pushed in California by the gun ban lobby. Their coordinated efforts became the NRA/CRPA Local Ordinance Project (LOP) – a statewide campaign to fight ill-conceived local efforts at gun control and educate politicians about available programs that are effective in reducing accidents and violence without infringing on the rights of law-abiding gun owners. The NRA/CRPA LOP has had tremendous success in beating back most of these anti-self-defense proposals.
In addition to fighting local gun bans, for decades the NRA has been litigating cases in California courts (and nationally) to promote the right to self-defense and the Second Amendment. In the post Heller andMcDonald legal environment, NRA and CRPA Foundation have formed the NRA/CRPA Foundation Legal Action Project (LAP), a joint venture to pro-actively strike down ill-conceived gun control laws and ordinances and advance the rights of firearms owners, specifically in California. The LAP’s notable litigation accomplishments include obtaining rulings striking down San Francisco’s "Prop H" handgun ban and California’s "AB 962," which would have banned mail-order ammunition sales and imposed draconian registration and fingerprinting requirements on ammunition purchases.
To see a partial list of the LAP’s recent accomplishments, or to contribute to the NRA / CRPAF LAP and support this and similar Second Amendment cases, visit www.crpafoundation.org All donations made to the CRPA Foundation will directly support litigation efforts to advance the rights of California gun owners