Just in - court blocks rule allowing CCW in National Parks - Page 4

Just in - court blocks rule allowing CCW in National Parks

This is a discussion on Just in - court blocks rule allowing CCW in National Parks within the The Second Amendment & Gun Legislation Discussion forums, part of the Related Topics category; Originally Posted by sgtD Here is a link to the opinion. http://www.nraila.org/media/PDFs/nat...tervention.PDF Thanks, I'm reading it now and I'm sure I'll have some venting to ...

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Thread: Just in - court blocks rule allowing CCW in National Parks

  1. #46
    Distinguished Member Array tinkerinWstuff's Avatar
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    Quote Originally Posted by sgtD View Post
    Thanks, I'm reading it now and I'm sure I'll have some venting to do shortly.

    Quote Originally Posted by BlackPR View Post
    Friend of the court brief. But we have to find the ruling itself. This is not a final ruling, it's important to note. The judge could back off, but really it's probably not likely. We have to know what the arguments are before we could write any friend of the court briefs. This is because if we just write in and say, "I have a gun, therefore I'm an interested party." It may not be relevant at all if the issue is Environmental impact.

    You can protest, too... faxing protests to courts is not unheard of, but really just tends to irritate judges -- who don't care one whit about public outrage (and probably rightly so).

    The other thing to do is to express your outrage to the DOI... Remember, they are defending this. We want them to CARE about defending it and not do a half-assed job at it... You also want them to care enough to fix their process should the rule get completely knocked down.
    Fine, if you want to do it this way, I'll try that first. But I think my way would have been more fun.
    "Run for your life from the man who tells you that money is evil. That sentence is the leper's bell of an approaching looter. So long as men live together on earth and need means to deal with one another-their only substitute, if they abandon money, is the muzzle of a gun."

    Who is John Galt?


  2. #47
    Distinguished Member Array tinkerinWstuff's Avatar
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    Quote Originally Posted by BlackPR View Post
    Unfortunately, that might not be possible here. What's likely to be decided here is whether or not they broke the law in implementation. It's my understand that the only claim for this is on the grounds of Environmental Impact Statements -- which were not done.

    More as I learn more...
    You nailed it dead on:

    In reaching this decision, the Court emphasizes that, despite many of the arguments raised
    by the parties, intervenor-movants, and amici curiae, this case is not a platform for resolving
    disputes concerning the merits of concealed weapons or laws related to concealed weapons that
    are appropriately directed to the other branches of government. The Court is bound to consider
    only whether Defendants have complied with Congress’ statutes and regulations, and not whether
    Defendants have made wise judgments in any normative sense. Accordingly, the Court expresses
    no view as to the merits of any laws or regulations related to concealed weapons or firearms
    generally.
    "Run for your life from the man who tells you that money is evil. That sentence is the leper's bell of an approaching looter. So long as men live together on earth and need means to deal with one another-their only substitute, if they abandon money, is the muzzle of a gun."

    Who is John Galt?

  3. #48
    Distinguished Member Array tinkerinWstuff's Avatar
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    Quote Originally Posted by f8lranger4x4 View Post
    So if I read this right we can no longer carry in National parks. What happened to the NRA
    Your answer from the ruling on the injunction here:

    The Mountain States Legal Foundation (“MSLF”) filed a Motion to Intervene as a
    Defendant in both cases on January 23, 2009. The National Rifle Association (“NRA”) filed a
    Motion to Intervene as a Defendant in both cases on January 28, 2009, and February 25, 2009,
    respectively. During the pendency of the motions, both the MSLF and the NRA filed
    Oppositions to Plaintiffs’ Motion for a Preliminary Injunction.
    So there is where to send your donations and show your support.
    "Run for your life from the man who tells you that money is evil. That sentence is the leper's bell of an approaching looter. So long as men live together on earth and need means to deal with one another-their only substitute, if they abandon money, is the muzzle of a gun."

    Who is John Galt?

  4. #49
    Senior Member Array BlackPR's Avatar
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    Okay... I really hate to say this. But after reading the decision, I think the judge is generally correct.

    What I see is a very poor attempt to defend this by the government, and two Amicus Curiae parties who did more harm than good. While the government was arguing that there would be no impact because, in general, the rule was just about carrying guns, not about shooting them -- the NRA was arguing that people use guns 2.5 million times a year to defend themselves.

    These are somewhat contradictory arguments. The governments stand that "the guns won't be used in general" was undermined by the NRA pointing out that "people use them all the time"... It was also undermined by comments from the public comment process with people expressing an intent to protect themselves.

    This is not the fault of the NRA or the commenters, it's really the fault of the Government making a very lame defense of this rule. The government SHOULD have been more aggressive in using a 2nd Amendment, States rights and individual rights argument. They also failed to show that an injunction could cause harm if someone couldn't defend themselves -- an argument they couldn't effectively make because of a concept called "Estoppel" meaning that they can't use two contradictory arguments to make their case. In other words, they can't make the claim that "guns won't be used" while simultaneously saying that "if guns can't be used, people won't be able to defend themselves."

    In essence, the Governments position that "guns won't be used" gave the judge the justification she needed to say, "well then, this injunction won't really harm anyone."

    The judge also pointed out that the government failed to justify a need for the rule change. They should have invoked Heller as their justification, as well as states rights (which they did, but in a very weak way).

    In short, this is a very discouraging ruling that tells me these things:

    • The Government isn't trying to win.
    • Individual defense was eliminated as a factor because of the governments argument.
    • The NRA had a good approach, but in light of the governments argument it only managed to damage the overall case.
    • Given the arguments in front of her, the judge really had to rule this way.
    • Brady did a better job of defining damage if the judge didn't rule in their favor than the government did. Even if they lied to do so.
    • Individual CCW holders are NOT represented in this case and that's a damn shame. They should be.


    In short, I expect this rule will be killed. I fully expect the DOI to not try again unless significant pressure is placed on them. Don't forget that we almost had a legislative move to do this before the Bush Administration announced the rule change. It may be our best bet going forward is to push for the legislative change and to bury the DOI in feedback and requests to get them to do it right. A legislative fix would be better as it would be less likely to be wound up in court. We know that if it's just a "rule change" the Brady idiots will find a way (any way) to challenge it, as they have in this case.

    Just my $0.02.
    The facts are indisputable. There is more data supporting the benefits of Conceal Carry than there is supporting global warming. If you choose ignorance, in light of all the evidence, in order to bolster your irrational fear of guns, you are a greater threat to society than any gun owner.

  5. #50
    Distinguished Member Array tinkerinWstuff's Avatar
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    Unfortunately, I think your summary BlackPR is spot on from my reading of the judge's ruling as well.
    "Run for your life from the man who tells you that money is evil. That sentence is the leper's bell of an approaching looter. So long as men live together on earth and need means to deal with one another-their only substitute, if they abandon money, is the muzzle of a gun."

    Who is John Galt?

  6. #51
    VIP Member Array tns0038's Avatar
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    Quote Originally Posted by BlackPR View Post
    Okay... I really hate to say this. But after reading the decision, I think the judge is generally correct.

    Just my $0.02.
    All of this stuff is way above my head, but from what I read I’ll have to agree with you. Considering a majority of our Senators want CCL in national parks, I’m sure this will be resolved.

    As far as environmental impact: What impact… Defensive handguns are not designed for hunting. And many states already allow CCL in state parks and wildlife preserves; Florida is one of them. So if you want an impact, just get the data from the states that already allow CCL in parks.

  7. #52
    Distinguished Member Array kazzaerexys's Avatar
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    Well, let's hope that groups on our side of the political divide take every new executive rule imposed by the current administration to court because of some little jot and/or tittle missed in the process.

    (No doubt the current administration would argue, in the case of any rule it passes, that the substance is more important than the details, but that for the previous administration's rules the details are more important than the substance. )
    “What is a moderate interpretation of [the Constitution]? Halfway between what it says and [...] what you want it to say?” —Justice Antonin Scalia

    SIG: P220R SS Elite SAO, P220R SAO, P220R Carry, P226R Navy, P226, P239/.40S&W, P2022/.40S&W; GSR 5", P6.

  8. #53
    Senior Member Array BlackPR's Avatar
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    Quote Originally Posted by tns0038 View Post

    As far as environmental impact: What impact… Defensive handguns are not designed for hunting. And many states already allow CCL in state parks and wildlife preserves; Florida is one of them. So if you want an impact, just get the data from the states that already allow CCL in parks.
    See, that's exactly the point. Brady is arguing "What IS the impact?" and the Governments argument for why there is no impact is that the rule only allows carrying guns, not discharging them. While the NRA is arguing essentially that there will be lots of discharging going on.

    Given those arguments, the judge pretty much has to say "What impact?" and force the government to answer truthfully (via an environmental impact study), rather than just saying "there won't be one." Perhaps it's good enough to look at other parks, but the point is that the government didn't do that. Or anything at all.

    In the end, Brady made a better case. Which is intensely frustrating because they don't give a hoot about the environmental impact, only about stopping the guns. The government also didn't bother to challenge Brady's standing in the case, meaning the judge really couldn't consider standing -- but she did hint in her ruling that it might have made a difference if the government had challenged standing.

    All in all, a miserable failure on behalf of the DOI and terrible lack of coordination or understanding on the part of the NRA on what the Governments position was. And a decent showing by Brady. It's sad but true.

    I hate these things. I am not a lawyer, but I find it frustrating to think that perhaps I could have made a better case than the Government did.

    When it's all said and done, some FOIA requests of "all emails and memos" regarding this case might be interesting, to see if they actually documented anywhere that they didn't intend to really try. This wasn't a close fight... the government botched the case bigtime.
    The facts are indisputable. There is more data supporting the benefits of Conceal Carry than there is supporting global warming. If you choose ignorance, in light of all the evidence, in order to bolster your irrational fear of guns, you are a greater threat to society than any gun owner.

  9. #54
    Distinguished Member Array tinkerinWstuff's Avatar
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    Quote Originally Posted by tns0038 View Post
    As far as environmental impact: What impact… Defensive handguns are not designed for hunting. And many states already allow CCL in state parks and wildlife preserves; Florida is one of them. So if you want an impact, just get the data from the states that already allow CCL in parks.
    I don't believe the process allows for you to submit the findings AFTER the rule has already been adopted. Findings in the assessment could have impacted peoples support for or against the rule change. Also, if the findings determine significant impact, it's open for public record. So there is a whole process that was circumvented and the rule change would likely have to start over. We know the new administration won't take that on.

    From NEPA's website:
    At the first level, an undertaking may be categorically excluded from a detailed environmental analysis if it meets certain criteria which a federal agency has previously determined as having no significant environmental impact. A number of agencies have developed lists of actions which are normally categorically excluded from environmental evaluation under their NEPA regulations.

    At the second level of analysis, a federal agency prepares a written environmental assessment (EA) to determine whether or not a federal undertaking would significantly affect the environment. If the answer is no, the agency issues a finding of no significant impact (FONSI). The FONSI may address measures which an agency will take to reduce (mitigate) potentially significant impacts.

    If the EA determines that the environmental consequences of a proposed federal undertaking may be significant, an EIS is prepared. An EIS is a more detailed evaluation of the proposed action and alternatives. The public, other federal agencies and outside parties may provide input into the preparation of an EIS and then comment on the draft EIS when it is completed.

    If a federal agency anticipates that an undertaking may significantly impact the environment, or if a project is environmentally controversial, a federal agency may choose to prepare an EIS without having to first prepare an EA.

    After a final EIS is prepared and at the time of its decision, a federal agency will prepare a public record of its decision addressing how the findings of the EIS, including consideration of alternatives, were incorporated into the agency's decision-making process.
    So it may have been easier if the previous administration had just submitted an environmental impact assessment. Goodness knows we had plenty of time while this rule change was open for comment all summer long. But at the least, it sure would have been nice if the NRA and DOI weren't contridicting eachother.
    "Run for your life from the man who tells you that money is evil. That sentence is the leper's bell of an approaching looter. So long as men live together on earth and need means to deal with one another-their only substitute, if they abandon money, is the muzzle of a gun."

    Who is John Galt?

  10. #55
    Senior Member Array ASSA9's Avatar
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    Quote Originally Posted by retsupt99 View Post
    Is the frog still sitting in the 'warming' water?
    Yes we are
    Zoe: "Preacher, don't the Bible have some pretty specific things to say about killing?

    Book: "Quite specific. It is, however, somewhat fuzzier on the subject of kneecaps."

  11. #56
    VIP Member Array sgtD's Avatar
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    This will likely not be overturned on appeal. The standard of review is high, meaning that (IIRC) an order such as this will usually only be overturned for abuse of discretion, meaning that the decison is totally erroneous and that no competent judge could have ruled this way given the facts. On some occasions, it is possible for the appellate court to go beyond the ruling, delve into the facts, and overturn, but I think it is very rare.

    Equity court claims leave large amounts of discretion in the hands of the judge. In fact the judge can even make up their own decision and award whatever they wish, even if the parties didn't ask for it in some cases.

    The DOI should have provided a thourough review of other public lands that allow CC, showing the environmental impact to be zero, and refuting their previous position that banning guns was necessary to protect people and animals. They tried to take a shortcut and it didn't work.

    The fact that Brady established likelihood of irreprable harm is suprising. I believe it is a testament to both their lawyers ability, and the bias against guns propgated in our society by Brady and their media cohorts.

    Like one previous poster said, Brady doesn't care about anything but getting rid of guns. However, had the opposing attorneys and DOI simply shown that 40 states allow concealed carry and there are no "shootouts in the streets" and other lands open to carry have not been environmentally impacted, perhaps the outcome would have been different.

    You would think that by now, most people and the courts would be educated about this by the fact that persons with concealed carry permits are around them everyday, without consequence of any kind. However, Brady's never ending lies about "gun violence" combined with a general public that is both hoplophobic, and so far removed from reality that they think meat is created in plastic wrap and Anna Nichole married for love, shows that despite of our success, we have a long uphill battle to fight. The idiocracy is upon us.

    Sad part is, we are paying for this crap as taxpayers. Oh well, add it to the trillions we are giving away anyhow.
    When you've got 'em by the balls, their hearts & minds will follow. Semper Fi.

  12. #57
    Distinguished Member Array tinkerinWstuff's Avatar
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    Quote Originally Posted by sgtD View Post
    The DOI should have provided a thourough review of other public lands that allow CC, showing the environmental impact to be zero, and refuting their previous position that banning guns was necessary to protect people and animals. They tried to take a shortcut and it didn't work.

    The fact that Brady established likelihood of irreprable harm is suprising. I believe it is a testament to both their lawyers ability, and the bias against guns propgated in our society by Brady and their media cohorts.

    Like one previous poster said, Brady doesn't care about anything but getting rid of guns. However, had the opposing attorneys and DOI simply shown that 40 states allow concealed carry and there are no "shootouts in the streets" and other lands open to carry have not been environmentally impacted, perhaps the outcome would have been different.
    Maybe there is still a chance. If I'm understanding everything correctly, this was an injunction and not a final rule? So if the NRA and the DOI can get their crap together, maybe they can come armed with the information supporting the position that there IS no significant environmental impact. I.E. state parks allowing CCW and other public lands. So the defendants can say, "we felt there was no significant environmental impact and did not require an EIS. By looking at state parks and similar lands; here is additional proof supporting our position." Correct me if I'm wrong, but maybe rather than doing the EIS, they can show more evidence supporting the position that it isn't required.

    As BlackPR said or alluded to, the NRA is too busy arguing it's our right and why we need guns and it would almost be better if they weren't involved in this situation.
    "Run for your life from the man who tells you that money is evil. That sentence is the leper's bell of an approaching looter. So long as men live together on earth and need means to deal with one another-their only substitute, if they abandon money, is the muzzle of a gun."

    Who is John Galt?

  13. #58
    Senior Member Array BlackPR's Avatar
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    Quote Originally Posted by tinkerinWstuff View Post
    Maybe there is still a chance. If I'm understanding everything correctly, this was an injunction and not a final rule? So if the NRA and the DOI can get their crap together, maybe they can come armed with the information supporting the position that there IS no significant environmental impact. I.E. state parks allowing CCW and other public lands. So the defendants can say, "we felt there was no significant environmental impact and did not require an EIS. By looking at state parks and similar lands; here is additional proof supporting our position." Correct me if I'm wrong, but maybe rather than doing the EIS, they can show more evidence supporting the position that it isn't required.

    It's a tough situation. This is just an injunction, but there's a very high likelyhood that it will be the final result. The judge even said so in her ruling.

    The problem with the NRA and the DOI getting on the ball now is what I mentioned previously... "estoppel".. They cannot change their arguments now. They're stuck with the date they brought to the prom. The best they can do is argue hard for those already-made arguments and hope for the best. Not likely to help.

    There are alternative remedies that the judge could possibly do, although this is pure speculation on my part. She could Enjoin the rule until such time that the proper studies are done, at which point the injunction would be lifted -- to do that, I think that she would have to feel that this was clearly an accident and not wilful on the part of the DOI. Again, not likely, even though that approach would seem to take the best interests of the people to heart. It would've been more likely had the DOI provided a solid reason for needing to make the change in the first place. Then the judge could say, "well, they had a good reason to change it... they just didn't go about it right. So go back and do the parts you skipped." But the judge has already said they didn't justify the need in the first place, making it FAR more likely she'll just toss the rule overall.

    At this stage, I would put it at 99.99% likely the rule goes.

    This court case is a stinker, and I don't think any time should be wasted on it. The DOI should just withdraw the rule, admit they didn't do it right the first time and start over. That's the smart thing to do. I put the likelyhood of that happening at maybe 10-15%. It's the best use of taxpayer money, I just don't trust that they'll try again at all.

    You know I don't like that answer... National Park carry was my pet project for a LONG time.
    The facts are indisputable. There is more data supporting the benefits of Conceal Carry than there is supporting global warming. If you choose ignorance, in light of all the evidence, in order to bolster your irrational fear of guns, you are a greater threat to society than any gun owner.

  14. #59
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    There is unfortunately a certain level of absurdity to this entire case. For anyone to argue (with a straight face) that lead in ammo, even if there are rare sd discharges, is senseless. The same argument could be used to ban park police and rangers from being armed until an environmental study is done.

    Does anyone think a suit demanding that park police go unarmed because of environmental concerns would get past the laughing stage.

    I haven't read the ruling, so it isn't fair of me to bash the judge. But, it is pretty hard to see how environmental impact issues can be the least bit sensible.

    I bet there is at least some lead in metal tent stakes. I don't hear anyone talking about banning tents or allowing only the use of plastic stakes; and these too (plastic tent stakes left behind) would have more real-world environmental impact that unfired ammo or the very rare SD ammo discharged. (Hopefully, SD discharges of lead would have no environmental impact as the lead would be
    firmly deposited in the intended BGs bod.)

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    VIP Member Array sgtD's Avatar
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    Quote Originally Posted by Hopyard View Post
    There is unfortunately a certain level of absurdity to this entire case. For anyone to argue (with a straight face) that lead in ammo, even if there are rare sd discharges, is senseless. The same argument could be used to ban park police and rangers from being armed until an environmental study is done.

    Does anyone think a suit demanding that park police go unarmed because of environmental concerns would get past the laughing stage.

    I haven't read the ruling, so it isn't fair of me to bash the judge. But, it is pretty hard to see how environmental impact issues can be the least bit sensible.

    I bet there is at least some lead in metal tent stakes. I don't hear anyone talking about banning tents or allowing only the use of plastic stakes; and these too (plastic tent stakes left behind) would have more real-world environmental impact that unfired ammo or the very rare SD ammo discharged. (Hopefully, SD discharges of lead would have no environmental impact as the lead would be
    firmly deposited in the intended BGs bod.)
    The judge repetedly stated that animal and human environments were to be considere in these impact studies. Without reading Brady's pleadings, I assume that they hit hard on one major factor necessary for injunctive relief, which is pulic policy/welfare. They must have argued suceesfully that allowing guns in the parks could be shown to have a negative impact on animals, potentially from shootings, and on people, becuase of a risk to "public safety" posed by people carrying loaded guns.

    You and I know that both arguments are pure BS, but the judge obviously didn't think our side countered the arguments sufficiently to dismiss the requirement of an EIS.
    When you've got 'em by the balls, their hearts & minds will follow. Semper Fi.

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