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View Full Version : WSJ: 'Heller’s Offspring: A Look at the New Generation of Gun-Control Suits'


Liberty1
03-31-2010, 10:43 AM
http://blogs.wsj.com/law/2010/03/30/hellers-offspring-a-look-at-the-new-generation-of-gun-control-suits/

By Vanessa O'Connell
These are the offspring of Heller:

A woman contends her small stature makes her an appealing target for criminals but says she was turned down for a concealed-carry handgun permit by the Sacramento County sheriff.

A Californian man, born without an arm below the right elbow, argues that the state’s roster of “approved” handguns precludes him from being able to buy a left-handed Glock.

An American man who now lives in Canada would like to purchase guns in the U.S. to store at his relatives’ home in Mount Vernon, Ohio, to use for sporting and self-defense.

All are now plaintiffs in suits that were filed in the wake of the June 2008 District of Columbia v. Heller ruling. In that case, the Supreme Court ruled that the Second Amendment protects an individual right to keep and bear arms at home, but left the door open to certain types of gun restrictions, many of which are currently being challenged.

The Second Amendment Foundation, a Bellevue, Wash., nonprofit, that took in $3.6 million in revenue in 2008, is paying for their legal challenges. Their cases are being handled by its attorney, Alan Gura, who won the Heller case.

Never mind that the landmark Heller ruling hasn’t led to massive gun-toting in D.C., where the city council so far has managed to maintain certain gun restrictions that it hopes avoid constitutional problems. Effectively, “the D.C. city council has kept its handgun ban and said ‘heck with you’” to the Supreme Court, said Wayne LaPierre, executive vice president of the National Rifle Association. The NRA financed its own (unsuccessful) challenge to the new restrictions. Click here for that ruling, which came down late last week. The NRA says it will appeal.

But the Heller ruling did spawn a bunch of litigation, including, of course, McDonald v. Chicago, a constitutional challenge to the Chicago handgun ban, for which the Supreme Court heard oral arguments earlier this month. The Second Amendment Foundation is now working on record 19 gun cases—a huge jump from its prior caseload of one or two lawsuits a year, according to founder Alan M. Gottlieb.

Among them is the case of Tom G. Palmer, a gay man who once used a handgun to avoid gay-bashing. One of the original plaintiffs in Heller, Palmer is suing Washington, D.C., arguing that the city’s ban on carrying handguns in public is invalid under Heller.

“What we are saying is you can’t ban open-carry and concealed carry and leave people no option at all” for carrying guns, Gottlieb said.

BigDogatPlay
03-31-2010, 1:06 PM
A Californian man, born without an arm below the right elbow, argues that the state’s roster of “approved” handguns precludes him from being able to buy a left-handed Glock.

I wasn't aware that piece of the case was even a dispute in law... it's so bloody obvious that it's true. As is the differences in color leg of the case.

Is it just me, or does this WSJ blog read like a reporter who didn't know a lot about the subject just threw junk at a wall?

kf6tac
03-31-2010, 1:13 PM
I wasn't aware that piece of the case was even a dispute in law... it's so bloody obvious that it's true. As is the differences in color leg of the case.

Is it just me, or does this WSJ blog read like a reporter who didn't know a lot about the subject just threw junk at a wall?

What's bothering you about that sentence? That is, in fact, the argument that is being presented, so by definition, that is what the individual is arguing.

CaliforniaCarry
03-31-2010, 1:15 PM
The NRA financed its own (unsuccessful) challenge to the new restrictions. Click here for that ruling, which came down late last week. The NRA says it will appeal.

I wish the NRA would not pursue cases like this. It seems like lately the NRA has been much better at lobbying than litigating. This case is too broad and gung-ho, in my opinion. On the other hand, I do understand them wanting to tackle the issues before another Gorski comes along and screws the pooch.

CaliforniaCarry
03-31-2010, 2:00 PM
What's bothering you about that sentence? That is, in fact, the argument that is being presented, so by definition, that is what the individual is arguing.

Actually, that he can't legally buy the handgun is a fact, not an argument. The argument is "because he can't buy that handgun the law is unconstitutional".

As I understand it, there is no dispute over whether he can or cannot buy the gun as law stands today.

GaryV
03-31-2010, 3:50 PM
I wish the NRA would not pursue cases like this. It seems like lately the NRA has been much better at lobbying than litigating.

I think that's always been the case, not just recently.

On the other hand, I do understand them wanting to tackle the issues before another Gorski comes along and screws the pooch.

It doesn't help if they do it themselves.

rkt88edmo
03-31-2010, 3:55 PM
I wish the NRA would not pursue cases like this. It seems like lately the NRA has been much better at lobbying than litigating. This case is too broad and gung-ho, in my opinion. On the other hand, I do understand them wanting to tackle the issues before another Gorski comes along and screws the pooch.

The NRA or the CGF? Which case are they (poorly) referencing in the blurb that you wish wouldn't be pursued?

Al Norris
03-31-2010, 4:15 PM
I wish the NRA would not pursue cases like this. It seems like lately the NRA has been much better at lobbying than litigating.I think that's always been the case, not just recently.
It is a pretty standard litigation technique, used by more than just the NRA.

Throw a plate of cooked spaghetti against the wall and see what sticks.

The problem with this has always been that the courts will take whatever "out" you give them. If they don't have to reach the answer of the plethora of questions, they won't.

Robert Levy and Alan Gura (and generally the Cato Institute), have showed everyone how this should be done: Narrow the question... Or at least ask the questions in a very narrow and restricted manner.

A narrow question is harder to avoid answering. Look at the complaints in Sykes, Pena and Palmer and compare them to Heller 2.

What they are doing is a modified form of how the NAACP got the decision it wanted in Brown v. Bd of Ed.

The NRA has yet to learn this lesson.

truthseeker
03-31-2010, 6:46 PM
IMO I think the NRA filed that lawsuit so that when the 2A is incorporated, that case is already in the system!

CaliforniaCarry
03-31-2010, 9:26 PM
The NRA or the CGF? Which case are they (poorly) referencing in the blurb that you wish wouldn't be pursued?

The NRA. They are referring to Heller 2, which is a Washington, DC case challenging the registration procedures, the assault weapons ban, and the high capacity magazine ban.

This is way too much for one case, and I think that all three items are being prematurely challenged. It's not the time to challenge registration requirements (which is a battle we'll probably lose anyhow, lots of legal types think that registration will be OK under Heller). It may not the time to challenge AW bans, and we do challenge them we should probably do it narrowly. A failed AW ban challenge could lead to all sorts of bad precedent. It's not the time to challenge high-cap mag bans; we need more wins under our belt, and even then it'll by no means be a slam-dunk.

CaliforniaCarry
03-31-2010, 9:27 PM
IMO I think the NRA filed that lawsuit so that when the 2A is incorporated, that case is already in the system!

This case is in DC. Incorporation doesn't matter there :)

Kharn
04-01-2010, 2:01 AM
The NRA. They are referring to Heller 2, which is a Washington, DC case challenging the registration procedures, the assault weapons ban, and the high capacity magazine ban.

This is way too much for one case, and I think that all three items are being prematurely challenged. It's not the time to challenge registration requirements (which is a battle we'll probably lose anyhow, lots of legal types think that registration will be OK under Heller). It may not the time to challenge AW bans, and we do challenge them we should probably do it narrowly. A failed AW ban challenge could lead to all sorts of bad precedent. It's not the time to challenge high-cap mag bans; we need more wins under our belt, and even then it'll by no means be a slam-dunk.DC's registration requirements must be challenged, they are extreme and malicious, with the only purpose of discouraging ownership. You have to go to one specific location to register your to-be-purchased gun during normal business hours, jump through their hoops (training, finger prints, etc), wait a while, receive word that you are approved, go pick up your gun from the only FFL in DC (and he charges over $100 per transfer) and take the gun back to the registration location before you're finally done IIRC. Oh yeah, the registration location? Nowhere near a Metro (subway) stop, in the heart of a ghetto that makes Beirut look like a fun place to party.

Only a few dozen people in the entire city have completed the registration process in the last two years.

Al Norris
04-01-2010, 9:56 AM
DC's registration requirements must be challenged,
I quite agree.

However, the NRA didn't do this. They challenged not only the registration process, but also the D.C. AWB and the D.C. High-Capacity detachable magazine ban.

In none of these challenges, were any of them fully explored. Sloppy legal strategy leads to sloppy legal work.

To be honest, I don't know if this was Halbrooks idea or the idea of his client, the NRA. Stephan Halbrook is a better attorney than that, so I suspect the latter.

CaliforniaCarry
04-01-2010, 10:19 AM
In none of these challenges, were any of them fully explored. Sloppy legal strategy leads to sloppy legal work.

And sloppy legal work leads to bad precedent that could take decades to revert. If NRA screws the pooch for us, my children's children may still be cleaning up the mess, and I'm only in my early 20's :eek:.

6172crew
04-01-2010, 11:17 AM
And sloppy legal work leads to bad precedent that could take decades to revert. If NRA screws the pooch for us, my children's children may still be cleaning up the mess, and I'm only in my early 20's :eek:.

The NRA (Wayne) said at the meeting he was going to bring as many cases to court as he could. The thought is that the new administration would try to change the 5-4 votes in scotus.

If they have the $$ I say we beat them at the game. They have been pounding us for years in court, its payback time.

Best thing GW did was fill the scotus with as many pro-gun guys as he could.

Al Norris
04-01-2010, 12:14 PM
6172crew, you still need a viable strategy. Throwing a plate of spaghetti at the wall, to see what sticks, is not a viable strategy.

Each case brought, should challenge a single legal question. You have 10 questions you want argued? Then bring 10 separate cases to bear. Don't lump all the questions in a single case. You will lose more than you gain.

wildhawker
04-01-2010, 12:39 PM
6172crew, you still need a viable strategy. Throwing a plate of spaghetti at the wall, to see what sticks, is not a viable strategy.

Each case brought, should challenge a single legal question. You have 10 questions you want argued? Then bring 10 separate cases to bear. Don't lump all the questions in a single case. You will lose more than you gain.

Exactly. Keep it narrow and force them to answer the question. It's very uncomfortable to be the judge who answers such a question with a BS opinion knowing that the plaintiff's attorney is *that guy* (who just won twice, back to back, at SCOTUS - and will go ALL THE WAY without hesitation).