Alan Gottlieb, founder and executive vice president of the Second Amendment Foundation, or SAF, likes to say that he and his team are “winning back firearms freedoms one lawsuit at a time,” and they’ve been doing a bang-up job of it.
In the wake of the critical victory in the Supreme Court in the Heller case, Gottlieb teamed up with Heller lead attorney Alan Gura to bring cases against the City of Chicago and several city suburbs over their outright bans on handgun possession, and a suit against a handgun ban by the city of San Francisco. Since then SAF, which already had a pretty solid track record for filing and winning litigation, and Gura have ramped up their efforts filing dozens of court challenges to restrictive gun laws nationwide.
At the time of the Heller victory in 2008, I commented that, while I believe litigation is important, I felt that litigation was a long, slow process that would take decades to produce meaningful results. What has transpired in the few years since that landmark decision has been nothing short of astounding. Gun bans and egregious restrictions have fallen like dominoes as Gottlieb and Gura have led a loosely associated army of attorneys in a strategy of selective and narrowly targeted litigation in which each victory lays the groundwork for the next court challenge.
In Heller, the Supreme Court recognized that the right to arms discussed in the Second Amendment is indeed an individual right with no requirement of affiliation with an organized militia. The opinion was narrowly focused, but left tons of room for interpretation and plenty of ambiguous commentary to give lower courts openings to uphold onerous gun laws – which they have done repeatedly.
On the other hand, the opinion laid down some very clear and solid footings on which to build cases for full restoration of the right to arms. Before such cases could be brought, though, it had to be established that the Second Amendment is enforceable against the states. That was the focus of the SAF lawsuit against Chicago. In that case, McDonald v. Chicago, Gura gave the Court a golden opportunity to restore the 14th Amendment, which had been shredded by bad decisions in the days of Jim Crow, but the justices chose to avoid that can of worms and instead “incorporated” the Second Amendment as a “fundamental right” enforceable against the states. That set the stage for the serious work to begin.
Rather than jump in with both feet as many wanted them to do, Gura and cooperating attorneys moved carefully and selectively; going after the most egregious and unsupportable laws first, establishing fundamental precedents and then using those precedents to win the next case.
While things have moved much faster than I would have ever dreamed possible, it is still a plodding and ponderous process with many pitfalls along the way. One of the problems is that criminal defense attorneys and over-zealous Second Amendment advocates keep bringing broad sweeping cases trying to overturn criminal convictions or wipe out a wide-ranging array of gun-control laws in one fell swoop. The result has been numerous bad precedents, as judges, often fearful of opening criminal and/or civil floodgates, have used some pretty far-fetched legal reasoning to maintain the status quo. They are able to do this because certain definitions and principles have not yet been solidly established – that’s what’s at the heart of the SAF-Gura strategy. By keeping their cases narrow and focused on fundamentals, they leave little room for equivocation on the part of judges. Each win establishes a precedent, which must then be followed by other judges, in effect boxing them in and forcing them to deliver the decisions they should. It also has the advantage of accomplishing goals incrementally, with each case only affecting a relatively small number of people and laws. By the time the “big” cases come up, limits and exceptions have already been defined, and the impact of the case has been narrowed by the successive cases leading up to it. This means that there is less concern about sweeping decisions forcing the release of convicted murderers or generating a flood of nuisance appeals from genuine criminal miscreants.
SAF is not the only game in town when it comes to firearm-rights litigation, but they have taken the lead, with almost 20 active cases, and are charting the course to victory in the courts. In cases where SAF is not a plaintiff, they often provide “friend of the court” briefs, and their attorneys are often involved behind the scenes helping to guide cases.
The SAF scored another important victory earlier this month when the U.S. district court in Maryland ruled unconstitutional that state’s requirement that a person show “good and valid reason” why they should be allowed to carry a gun outside the home. Maryland has been notorious for denying concealed carry permits to anyone who is not routinely transporting large sums of money or other valuables.
In the 1980s my mother was selling real estate in Maryland and was unable to get a carry permit even though there had been a rash of female agents being raped and murdered. I never understood how money could ever be more valuable than my mother’s life. Such asinine policies have been put on notice by this decision – which will almost certainly be appealed and could end up in the Supreme Court.
On that same day, the Colorado Supreme Court ruled in a case, brought by Students for Concealed Carry, that state-funded colleges and universities trying to prohibit the otherwise legal possession of guns on campus were in violation of the state’s strong preemption law. The law prohibits any government entity except the state legislature from promulgating any laws or regulations dealing with firearms and/or ammunition. Some state educational institutions had tried to claim exemption from that restriction by unilaterally banning the possession of firearms on their campuses.
The Oregon Firearms Federation, or OFF, won a similar case against the Oregon University System recently only to have the University System repeal their “administrative rule” banning guns on campus and instituted a new “policy” banning guns on campus. There appears to be no provision for penalizing entities that violate the state’s preemption laws, and the Oregon University System is blatantly disregarding the court’s order. This creates a dangerous situation where lawful firearm carriers could be treated like armed criminals by campus police. OFF hasn’t yet decided whether to go back to court or seek other remedies.
SAF won another case in early March when the Supreme Court of Washington State came out with a unanimous decision slapping down the city of Seattle in a long-running legal battle over banning guns in city parks and other public locations. This case, like the Colorado and Oregon cases, was based on the state’s strong preemption law. Washington’s law was one of the first of its kind in the nation and has been used as a model for many other states. That makes this decision all the more important, as the precedent could be particularly useful in future preemption cases in those states.
On a personal note: I received a note from Dick Heller, the plaintiff in the Heller case, letting me know that his wife’s health issues are becoming dire. Jane has been on the waiting list for a kidney transplant for years now, but a suitable donor has not been found. It is now critical that Jane receive a transplant as soon as possible, so Dick has put out a plea for anyone with Type-O or Type-B blood who might consider being a living donor for her. What an amazing opportunity for someone to repay something to this couple that has done so much for all of us. I don’t know if I would have the courage to do it, but I’m not the right blood type, so I can only offer my prayers.
