SAF sues DC for carry permits - Page 3

SAF sues DC for carry permits

This is a discussion on SAF sues DC for carry permits within the The Second Amendment & Gun Legislation Discussion forums, part of the Related Topics category; As long as we can act like their (lib's) brains and thinkcenter they will never be able to logically disprove our proven logic about firearms ...

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Thread: SAF sues DC for carry permits

  1. #31
    Distinguished Member Array tangoseal's Avatar
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    As long as we can act like their (lib's) brains and thinkcenter they will never be able to logically disprove our proven logic about firearms usage and rights.
    "I believe that the right of the citizen to keep and bear arms must not be infringed if liberty in America is to survive." - Ronald Reagan

  2. #32
    Senior Member Array Rob P.'s Avatar
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    I'm hearing the old "fender bender = gunfight" argument again. It HAS YET to be successful so why to these people keep yammering with it?

    IMO, Mr. Raymond is a poor plaintiff for this suit. He has admitted that he has broken a firearms law through either intent or ignorance. The fact that the law was overbearing is irrelevant - he broke it during a time when it was enforceable. His suit appears to be one in which he seeks forgiveness for his error rather than one in which he seeks to remedy an unconstitutional law.

  3. #33
    Member Array GHFLRLTD's Avatar
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    Raymond is a Good Plaintiff

    Rob P.

    IMO, Mr. Raymond is a poor plaintiff for this suit. He has admitted that he has broken a firearms law through either intent or ignorance. The fact that the law was overbearing is irrelevant - he broke it during a time when it was enforceable. His suit appears to be one in which he seeks forgiveness for his error rather than one in which he seeks to remedy an unconstitutional law.
    This is a little more complicated than that. He is mad because it was an error, yes, but indicates indicates that he was a law-abiding citizen who had his constitutional rights under 2nd Amendment violated by the unconstitutional law. Breaking an unconstitutional law is sometimes the means to get it off the books.

    See Love vs. Virginia, the case that ended the law in Virginia against inter-racial marrages. Those two otherwise law-abiding people had gotten married in DC, and had come back to their neighborhood to live.

    He is a great way to get the rules in DC to allow us to visit the place and pack taken care of. Look, the guy was good enough to get a Maryland CCW.

    He also is an non-standard defendant (compared to the MSM view that we are all redneck white guys driving pickup trucks and wearing camo) - given that he is Africian-American, and brings the obvious racial profiling into the mix (yes, the cops in DC racial profile). They stopped the gentleman because he was young, well-dressed, and had an expensive car.
    George H. Foster
    Orlando, Florida

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  5. #34
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    District seeks dismissal of gun lawsuit

    By Kristi Jourdan THE WASHINGTON TIMES

    D.C. Attorney General Peter J. Nickles filed a motion in U.S. District Court
    Thursday to dismiss a lawsuit brought by four gun advocates who are seeking
    the right to carry their weapons outside their homes.

    Mr. Nickles argues that current city gun laws, which allow licensed gun owners
    to keep weapons in their homes for their personal protection, fall under the
    category of "reasonable restrictions" permitted by the court.

    The current laws were enacted after the Supreme Court struck down the
    District's decades-old gun ban in its June 2008 ruling on the District v.
    Heller case.

    "The District's regulation of handguns at issue here is squarely in the
    mainstream and eminently reasonable, minimally intruding on the right
    announced in Heller to bear arms for the protection of 'hearth and home,'
    while at the same time safeguarding public safety under traditional police
    powers," Mr. Nickles wrote.

    The lawsuit, filed last month, argues that city laws banning the carrying of
    handguns in public violate the Second Amendment of the U.S. Constitution. It
    asks that the District issue licenses to carry guns in public to legal gun
    owners in the city and to people with valid carry permits from outside the

    The nonprofit Washington state-based Second Amendment Foundation is named as a
    plaintiff for the Palmer lawsuit as well as D.C. residents Tom G. Palmer,
    George Lyon and Amy McVey.

    Edward Raymond, a Navy veteran enrolled in law school in New Hampshire, is
    listed as a plaintiff in the Palmer lawsuit. In April 2007, Mr. Raymond, who
    is not a D.C. resident, was stopped for speeding in the District while he was
    transporting a gun for which he had permits in Maryland and Florida. He was
    charged with carrying a pistol without a license and pleaded guilty to
    misdemeanor unregistered gun and unregistered ammunition charges.

    The District refused to grant Mr. Raymond a license to transport his gun
    through the city.

    Alan Gura, who argued the Heller case, is the plaintiff's attorney. Mr. Gura
    said that because his client, who lives outside the District, cannot obtain a
    license to transport his firearm when he travels through city limits, the law
    stifles his Second Amendment rights.

    "We're going to be responding to this obviously in a few days," he said. "It's
    quite wrong, the city seems to think it's not down with the Second Amendment,
    and they'll find out they're wrong."

    D.C. Appeals Court Upholds Mandatory Gun Licensing

    An appeals court in Washington, D.C. has upheld the city's extremely restrictive law requiring residents to obtain licenses to carry handguns outside of their homes.

    The U.S. Supreme Court's ruling last year in the high-profile D.C. v. Heller Second Amendment case did not invalidate the District of Columbia's licensing requirements, and even appears to have endorsed them, the appeals court ruled.

    "While the statute indisputably imposes a regulatory restriction on the right to bear arms, on its face it does not stifle a fundamental liberty," the D.C. Court of Appeals concluded in an opinion dated August 27.

    The case arose out of a criminal prosecution of a fellow named Manuel Brown, who was charged with crimes including carrying a pistol without a license. On appeal, Brown claimed the ordinance violated his Second Amendment rights. (The relevant law says: "No person shall carry within the District of Columbia either openly or concealed on or about their person, a pistol, without a license issued pursuant to District of Columbia law, or any deadly or dangerous weapon capable of being so concealed.")

    Now, bad facts tend to make bad law, and Brown -- who had been convicted of murder by this point -- was hardly a sympathetic defendant. Different facts and a different litigant may have yielded a different result, and Brown would probably not have been able to obtain a concealed weapon license anyway.

    Still, it's worth noting that the Second Amendment Foundation filed a federal lawsuit against the District a few weeks earlier on a very similar question: the constitutionality, post-Heller, of the city's licensing scheme.

    Alan Gura, the Alexandria, Va. attorney who filed the civil suit, told me on Wednesday evening that he doesn't think the recent appeals court decision will make much of a difference.

    "We're not challenging the requirement for a license," Gura said. But, he added, "there has to be the ability for people to quality for a license."

    As an aside, the reason I called the District's law extremely restrictive is not the mere requirement for a license; not all states permit unlicensed open carry of firearms, and only Vermont and Alaska allow concealed carry without licenses. The reason the District's law is so restrictive is that a law enacted in December 2008 seems to have limited the ability of the police chief to authorize any carrying of firearms for self defense.

    Here's another excerpt from Brown v. U.S., which was decided by the city's equivalent of a state appeals court, while Gura's lawsuit will be heard in federal court:

    On its face, the licensure requirement that the CPWL (carrying a pistol without a license) statute imposes does not appear as a substantial obstacle to the exercise of Second Amendment rights. Moreover, while the statute indisputably imposes a regulatory restriction on the right to bear arms, on its face it does not stifle a fundamental liberty. See United States v. Miller, 604 F.Supp.2d 1162, 1170 (W.D.Tenn.2009) ("a close examination of Heller reveals that the Court never explicitly embraced ... the right to bear arms as 'fundamental' under the Constitution"). For these reasons, we conclude that the CPWL statute is not invalid on its face.

    We turn next to amicus's "as applied" argument: the argument that enforcement against appellant of the CPWL statute-as part of the District's regulatory scheme that required him to have a license to carry a pistol but made it impossible for him to obtain such a license-violated his rights under the Second Amendment... Under either approach-intermediate scrutiny or a consideration of whether the restriction is "similar enough ... to justify its inclusion in the list of ‘longstanding prohibitions' that survive Second Amendment scrutiny" -- we have little trouble concluding that the enforcement of the CPWL statute involved here was lawful.

    And a few other items as I try to catch up from a week offline in the Nevada desert at the Burning Man festival:

    Gun Rights In St. Louis: If you're anywhere near St. Louis, Mo. the weekend of September 26, you should try to stop by the 24th annual Gun Rights Policy Conference. I'll be there for the first time (remember, I've only been on this beat a few weeks) and would be delighted to meet readers. Look for me at the panel on Montana and states' rights.

    Felon Has Right To Own Guns: Barney Britt is a longtime outdoorsman and hunter who once claimed a trophy for shooting the third largest deer in North Carolina history. Now the resident of the town of Garner, a short drive south of Raleigh, N.C., can claim a different type of trophy: he faced off against the government over gun rights, and he won.

    Some background: Britt pleaded guilty to felony possession of methaqualone (aka quaaludes) in 1979, when he was 20 years old. Now he's 49 years old, has no subsequent criminal history, and there's no evidence he's violent or dangerous today. In fact, he peaceably owned firearms from 1987 to 2004.

    In 2004, the North Carolina General Assembly rewrote the law to deny possession of any firearm to anyone convicted of a felony, even if the guns were kept at their homes or businesses. So Britt filed a lawsuit claiming his rights -- not his Second Amendment rights, but those protected by the state constitution -- were violated by the new law.

    On August 28, the North Carolina Supreme Court agreed. The majority opinion written by Justice Edward Brady concluded: "Based on the facts of plaintiff's crime, his long post-conviction history of respect for the law, the absence of any evidence of violence by plaintiff, and the lack of any exception or possible relief from the statute's operation, as applied to plaintiff, the 2004 version of N.C.G.S. Sec. 14-451.1 is an unreasonable regulation, not fairly related to the preservation of public peace and safety."

    Two thoughts: First, the wording of that portion of the North Carolina constitution is identical to the Second Amendment ("the right of the people to keep and bear arms shall not be infringed"), so the same logic that let a state supreme court court reach the pro-gun outcome should allow the U.S. Supreme Court to reach the same conclusion. Then again, last year's Heller majority opinion didn't.

    Second, this is unlikely to sway judges in other jurisdictions. Britt is an unusually sympathetic plaintiff, one who had his civil rights restored and who legally possessed firearms for over a decade without incident. Almost every day, citing the language in Heller, state and federal courts routinely reject claims by other convicted felons that their rights to own firearms were violated.

    D.C. Defends Ban On Carrying Handguns

    The city of Washington, D.C. is mounting an aggressive legal defense of its ban on carrying handguns, calling it "squarely in the mainstream and eminently reasonable."

    In a 37-page legal brief filed this week, the District of Columbia says that refusing to grant licenses to its residents to carry handguns in public complies with the Second Amendment. The regulations "serve important goals of public safety, especially here, in the nation's capital," the brief says.

    If this lawsuit sounds a little familiar, you're right. It was in June 2008 that the U.S. Supreme Court shot down a city ordinance effectively preventing law-abiding residents from possessing firearms for self-defense inside their own homes. (See the nearby photograph of plaintiff Dick Heller, right, and his attorney Robert Levy.)

    The text of the Second Amendment says that "the right of the people to keep and bear arms, shall not be infringed." Last year's D.C. v. Heller case dealt with the right to keep arms, but what about the second half: the right to bear arms?

    That's what the Second Amendment Foundation is hoping to clear up in a lawsuit the non-profit group filed against the District last month.

    The city's response filed on Wednesday says the case should be tossed out of court by granting its motion for summary judgement. Here are some excerpts:

    Plaintiffs' invocation of various snippets of language from Heller -- that "the right to keep and carry arms” authorizes the public carrying of weapons -- is not supported by that decision, or any other controlling decision. Plaintiffs rely almost exclusively on legal treatises or inapposite, outdated decisions from other jurisdictions."

    Plaintiffs provide no controlling or persuasive authority for their conclusion that the right to bear arms universally encompasses the right to carry handguns in public; for over a century and a half, it has been illegal to do so in the nation's capital. Such longstanding law and policy cannot be overturned on the basis of plaintiffs' flimsy showing.

    The District is not alone in prohibiting the registration of firearms by non-residents, and declining to issue "carry" licenses, or recognize such licenses from other jurisdictions. The Second Amendment does not "guarante[e] the right to carry handguns in public for self-defense", nor are the District's (and Congress') policy choices here as far outside the mainstream as plaintiffs' [sic] argue.

    The Supreme Court recognized the power of government to ban the carrying of weapons in "sensitive places." ... Defendants aver that the whole of the District of Columbia should be considered a "sensitive" place, given its dense concentration of iconic structures, government facilities, embassies, and regular meetings of diplomats and leaders from around the world... Prohibiting the carrying of weapons in public, and restricting registration of handguns to District residents, serve important goals of public safety, especially here, in the nation’s capital. The District need not observe the lowest common denominator of gun control among the various states. For the foregoing reasons, defendants move for summary judgment.

    The District's city code says nobody may carry "either openly or concealed on or about their person, a pistol, without a license." But a post-Heller law that took effect early this year appears to have curbed the ability of the police chief to grant those licenses.

    For their part, the Second Amendment Foundation and the group's attorney, Alexandria, Va.-based Alan Gura, are not arguing that all licenses-to-carry schemes are unconstitutional (something that one D.C.-area court would reject anyway). Rather, they're saying that a complete ban on open and concealed carry licenses is necessarily unconstitutional.

    "We're not against all gun laws or forms of gun control here," the Second Amendment Foundation's Alan Gottlieb told me last month. "We're not saying that you can bring your gun to the Capitol building or the White House. But there are obviously places where you should be able to carry a gun for self-defense."

    Now, there may be some problems with the District's argument. One is a simple factual error: Deputy Attorney General George Valentine's brief claims that "the majority of Americans live in states that entirely prohibit the carrying of concealed weapons."

    Perhaps it was an editing mistake, but in any case, that statement is untrue. Only two states, Wisconsin and Illinois, completely prohibit carrying concealed weapons. Even states like California and New York, not known to be especially gun-friendly, permit concealed carry licenses to be granted (even if it's difficult to obtain one in practice).

    The other problem with the District's argument is that, if the Second Amendment does protects an individual right, the right to "bear arms" has to mean something more than walking around your house with a .40 caliber Glock in a belt holster.

    In last year's Heller case, the justices' majority opinion noted that "at the time of the founding, as now, to 'bear' meant to 'carry,'" and that the phrase "'bear arms' was unambiguously used to refer to the carrying of weapons outside of an organized militia." Also: "We find that (the Second Amendment's clauses) guarantee the individual right to possess and carry weapons in case of confrontation.""

    That seems reasonably clear. But because the city of Washington, D.C. sees it otherwise, its handgun laws may end up back at the Supreme Court soon enough.

    Gun Owners' Next Victory in D.C.
    By Robert A. Levy

    The Supreme Court, in District of Columbia v. Heller, declared that Washington’s 32-year ban on all functional firearms violated the Second Amendment. Justice Antonin Scalia’s majority opinion, however, applied only to possession of guns in the home. The court did not address, and was not asked to address, firearms carried outside the home. That’s the issue posed in a new lawsuit against the District by Tom Palmer (disclosure: my colleague at the Cato Institute) and four other plaintiffs — represented by Alan Gura, the lawyer who successfully argued Heller before the court.

    After Heller, the District relaxed its ban on residents seeking “to register a pistol for use in self-defense within that person’s home.” But D.C. law still states that “[n]o person shall carry within the District of Columbia either openly or concealed on or about their person, a pistol, without a license.” Currently, the city affords no process by which to issue such a license. A first violation of the carry ban is punishable by a fine of up to $5,000 and imprisonment for up to five years.

    Does the Constitution mandate that the nation’s capital allow firearms to be carried outside the home? The right to bear arms, the court said in Heller, is an “individual right unconnected to militia service.” To “bear” means to “carry.” More specifically, when used with “arms,” the opinion said, “bear” means “carrying for a particular purpose — confrontation.” Nothing in that formulation implies a right that can be exercised only within one’s home.

    Indeed Justice Ruth Bader Ginsburg, although she dissented in Heller, cited Black’s Law Dictionary to suggest in a prior opinion that the Second Amendment entails a right to “wear, bear, or carry ..... upon the person or in the clothing or in a pocket, ..... armed and ready ..... in a case of conflict with another person.” That language, says Michael O’Shea in the West Virginia Law Review, “reads like a literal description of the practice of lawful concealed carry, as engaged in by millions of Americans in the forty-eight states that authorize the carrying of concealed handguns.”

    Of course, Second Amendment rights, like First Amendment rights, are not absolute. Scalia was careful to note that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Lawyers call such statements dicta — a statement not necessary to the holding and, therefore, not binding in other cases.

    Nonetheless, dicta can be important. Gura, for that reason, took pains to fashion his new complaint to fit Scalia’s framework. The Palmer lawsuit acknowledges that Washington “retains the ability to regulate the manner of carrying handguns, prohibit the carrying of handguns in specific, narrowly defined sensitive places, prohibit the carrying of arms that are not within the scope of Second Amendment protection, and disqualify specific, particularly dangerous individuals from carrying handguns.” Restrictions on carrying are permissible, but an outright ban is not. As Gura put it, the District “may not completely ban the carrying of handguns for self-defense, deny individuals the right to carry handguns in non-sensitive places, [or] deprive individuals of the right to carry handguns in an arbitrary and capricious manner.”

    Proponents of a total ban have seized on another of Scalia’s pronouncements in Heller. He pointed out that 19th-century courts considered prohibitions on carrying concealed weapons “lawful under the Second Amendment or state analogues.” That statement, too, is dicta. Perhaps more significant, open-carry rather than concealed-carry was the preferred mode of arms-bearing in the 19th century. To be sure, some states prohibited concealed-carry, but only because they allowed open-carry — an alternative that the District probably would reject. An early Georgia case, for example, upheld a concealed-carry ban but struck down an open-carry ban. Ditto for other cases cited in Heller. Essentially, the Second Amendment demands that peaceable citizens be allowed to carry defensive weapons in some manner. The right to bear arms can be limited, but it cannot be destroyed.

    Prediction: The courts will (and should) invalidate Washington’s unconditional ban on carrying, as well as similar bans in Wisconsin and Illinois, the only two states to have such bans. Regulations consistent with the Heller opinion will be permitted. But the Supreme Court has affirmed that the Second Amendment secures an individual right, expressly enumerated in the Constitution. That means government has the burden of demonstrating that its proposed regulations are necessary.

    Robert A. Levy is chairman of the Cato Institute and was co-counsel to the plaintiffs in District of Columbia v. Heller.
    Last edited by DaveH; September 11th, 2009 at 08:11 PM. Reason: Missed some of my cut & paste
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  6. #35
    Senior Member Array press1280's Avatar
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    The hearing for the case is set for January 2010.
    "The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree..."
    Nunn v. State GA 1848

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