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View Full Version : LEGAL BRIEF FILED ADDRESSING STANDARD OF REVIEW IN 9th CIRCUIT Dist. Ct.


libertarian4427
06-07-2012, 12:46 PM
Hi all, I’m new to California but a long time NRA and gun rights supporter. I’ve enjoyed reading up on California gun laws and all of the hot legal and political issues on this site since I moved. I saw this case posted in a couple of other forums so I thought I’d share it here as well. Amazing to see how hard our rights are being fought for here in CA!!!

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 can be viewed here: http://michellawyers.com/wp-content/uploads/2010/12/Jackson_Conformed-Motion-for-Partial-Judgment-On-The-Pleadings.pdf It 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 http://michellawyers.com/wp-content/uploads/2010/12/Jackson-v.-City-and-County-of-San-Francisco-F.Supp_.2d-2011.pdf 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, the Jackson 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 and McDonald 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.

Paul S
06-07-2012, 12:54 PM
Welcome to Calguns my friend.

Thanks for sharing the reminder on the Jackson v San Francisco case. It has been followed quite closely here on the forum...but it is always good to get an occasional reminder of what is working its way through the judicial system.

As I'm sure you've determined by now the 9th Circuit is not our friend. If there is anyway the 9th Circuit jurists can water down and/or avoid dealing directly with a 2nd Amendment issue they will do so. Very frustrating to us all. Stay tuned...stay informed...and again..welcome.

Paul S

OleCuss
06-07-2012, 12:59 PM
Welcome to the forum! Good to have you on board.

I'm glad they are making progress. Unfortunately, it looks like much of your post might be copied from the NRA-ILA site and it may not fit into the "Fair Use" provisions and a moderator might make the post/thread go away. But maybe that's OK - and we do consider the NRA to be a friend and I'd hope the NRA considers CGN to be a friend.

But I appreciate the update.

wildhawker
06-07-2012, 1:05 PM
Don't worry, OleCuss, there's no worry. Chuck prefers to whore his pressers around, which is why ILA, CRPA, and NRA CA all say the exact same things all the time.

-Brandon

OleCuss
06-07-2012, 1:17 PM
Don't worry, OleCuss, there's no worry. Chuck prefers to whore his pressers around, which is why ILA, CRPA, and NRA CA all say the exact same things all the time.

-Brandon

Yeah, I get his e-mails and then I see almost the exact same thing posted here by his minions.

I really don't mind, but at times it gets a little tiresome.

But I enjoyed when Sean Brady and a few others associated with him used to post here.

Librarian
06-07-2012, 1:21 PM
There are no legal problems circulating press releases - the writers hope for wide distribution.

See also the wiki -- http://wiki.calgunsfoundation.org/Jackson_v._San_Francisco

and the main (I think) discussion thread http://www.calguns.net/calgunforum/showthread.php?t=347708

Californio
06-07-2012, 2:18 PM
Chuck prefers to whore his pressers around, which is why ILA, CRPA, and NRA CA all say the exact same things all the time.

-Brandon

Brandon, comments like these are really Counter Productive. You will catch more flies with honey than vinegar. You promote your causes, which I support, he promotes his.

It really seems that all the Marketing Egos need to try to get along instead of going off on each other.

wildhawker
06-07-2012, 4:24 PM
Define counter-productive.

You're talking about it- aren't you?

-Brandon

NoJoke
06-07-2012, 5:08 PM
Welcome libertarian4427, its great to see new membership.

I hope our intelligent, motivated and constitutionally bound membership continues to grow by leaps and bounds!

I'm new to all this but I still find it absolutely astonishing that after, what 350 years the second amendment is still being debated as to its meaning of "shall not be infringed" - amazing.

...and intellectually disingenuous to the anti's who claim to be American. We need to be allowed the tools to self defense, it's a universal and God given right. That RIGHT will not take that away!

Californio
06-07-2012, 8:05 PM
Define counter-productive.

You're talking about it- aren't you?

-Brandon

Kid, calling a 2nd Amendment Attorney a Whore is Counter Productive.

Your handlers need to yank your chain before you destroy all their hard won credibility with your childish snipes.

wildhawker
06-07-2012, 8:33 PM
Kid, calling a 2nd Amendment Attorney a Whore is Counter Productive.

Your handlers need to yank your chain before you destroy all their hard won credibility with your childish snipes.

You fail on the merits and also for the really poorly-executed snipe.

If you recall, Chuck was the one who described his lawyering in that manner. I said: "Chuck prefers to whore his pressers around, which is why ILA, CRPA, and NRA CA all say the exact same things all the time." My statement is correct on the facts - Chuck *does* whore his press releases around, and they *are* the same on ILA, CRPA, and NRA CA. Do you have evidence to the contrary?

Recall, also, that I have no handlers. We're all just volunteers, remember?

-Brandon

Twystd1
06-08-2012, 1:05 PM
Wildhawker,
Your need to be right at any cost is getting in the way of your end result.
I know you can't see it. Yet that is what you are doing.

Twystd1

FalconLair
06-08-2012, 1:40 PM
wow, i've only been here on these forums for a very few short months but is seems to me there are some emotions running high between some of these groups

Mr. Combs, you've been around here since 2008, I see you have over 11,000 post in this forum alone and from what I've read in the past you seem to be an intelligent person, well versed in many of the issues surrounding th 2A fight

hopefully there will be a day, soon, when everyone can put aside whatever differences be had and rise up for the "real" fight that lies ahead :)

wildhawker
06-08-2012, 1:44 PM
Wildhawker,
Your need to be right at any cost is getting in the way of your end result.
I know you can't see it. Yet that is what you are doing.

Twystd1

Maybe you're just assuming too much in your analysis.

-Brandon

OleCuss
06-08-2012, 1:47 PM
For the sake of discussion let us assume Chuck never described any aspect of what he does as "whoring".

So why should someone be offended by something that has been done by men and women for as long as we can document? Yes, I have never visited a prostitute and I would never encourage one to engage in that "profession". But if someone chooses to do that I do not see any great reason to disparage their activities by using the description of that activity as a perjorative.

I mean, a prostitute is in no way damaging your personal rights to life, liberty, property, freedom of movement, freedom of religion, etc. Whereas our government in Sacramento (and many governments elsewhere) are actively and continuously harming our liberty.

We should stop using "whoring" as a perjorative. Just don't frequent them and you'll never catch a disease from them, lose your money to them, etc.

If you want to use a perjorative in this state maybe using the term "Attorney General", or "State Senator", or "Assembly Member" should be more offensive.

As it is, I don't bother prostitutes and they don't bother me. I consider their "whoring" to be more honorable than our state governmental activities.

Use "legislating" as a perjorative and leave the prostitutes alone.

Fjold
06-08-2012, 4:59 PM
I'm new to all this but I still find it absolutely astonishing that after, what 350 years the second amendment is still being debated as to its meaning of "shall not be infringed" - amazing.


350 years ago was 1662. The US Constitution was written in 1787.

BTW, Wildhawker did not call anyone a "whore". Reading is fundamental.

choprzrul
06-08-2012, 5:09 PM
350 years ago was 1662. The US Constitution was written in 1787.

BTW, Wildhawker did not call anyone a "whore". Reading is fundamental.

^^again Frank slides in mid-conversation and offers concise words of wisdom^^

.

hoffmang
06-08-2012, 5:19 PM
For the sake of discussion let us assume Chuck never described any aspect of what he does as "whoring".

So why should someone be offended by something that has been done by men and women for as long as we can document?

Do you prefer that your NRA dues be used for filing more cases or for issuing more than one press release?

Simple, but important, question.

-Gene

NoJoke
06-08-2012, 5:22 PM
350 years ago was 1662. The US Constitution was written in 1787.



Maybe what I meant to say is, "Will it take 350 years to figure out the shortest amendment to the constitution?" :rolleyes: :D ;)