Thursday, March 21, 2013

In Gun Rights Litigation News

It has been a busy day for gun rights litigation. On the down side, the 4th Circuit Court of Appeals overturned the decision in Woollard v. Gallagher which had overturned the State of Maryland's "good and substantial reason" requirement for the issuance of a carry permit. In brief, that court found that Maryland's interest in public safety met the standards of intermediate scrutiny.

I have not read the full decision so I will defer to Professor Eugene Volokh and Second Amendment attorney Dave Hardy for their learned commentary on the decision.

First, Prof. Volokh:
The court claims that it’s not deciding whether the Second Amendment right to keep and bear arms in self-defense extends to carrying a gun outside the home. Rather, the court concludes that, even if such a right exists, Maryland’s licensing scheme — which requires a “good and substantial” reason for a license to carry and which doesn’t treat a general desire for self-defense as an adequate reason — passes intermediate scrutiny.

But it seems to me that means the court is thereby deciding that the right to keep and bear arms doesn’t extend to carrying outside the home for self-defense. If a court lets the government deny the ability to carry guns outside the home for self-defense to nearly everybody, the court is in essence saying there is no such right to carry.
Next, Dave Hardy:
 I cannot think of any other right considered a fundamental right, whose exercise can be (1) punished unless the person receives a government permit and (2) there are no standards for the permit issuance beyond a government official's feelings.
I quite agree with Sebastian that this one is destined for the Supreme Court. This combined with Kachalsky and the twin Illinois cases of Shepard v. Madigan and Moore v. Madigan present a split between the circuits. There is no word yet from the Second Amendment Foundation or Alan Gura but I cannot believe they won't appeal.

In more positive news, word comes from Louisiana that the state's felon in possession law was struck down as violating strict scrutiny. In November 2012, the voters of Louisiana overwhelmingly adopted a provision to their state constitution that said,  "The right of each citizen to keep and bear arms is fundamental and shall not be infringed. Any restriction on this right shall be subject to strict scrutiny."

Finally, the NY State Rifle Association - the NRA's affiliate in that state - along with a number of other organizational and individual plaintiffs filed suit in US District Court for the Western District of New York challenging the new NY SAFE Act. The defendants include Gov. Andrew Cuomo and Attorney General Eric Schneidermann among others.

The suit seeks a declarative judgement and injunctive relief based upon the law violating the right to keep and bear arms under the 2nd and 14th Amendments, the equal protection clause of the 14th Amendment, the Dormant Commerce Clause, Article I, § 8 of the Constitutions, and the due process clause of the 14th Amendment.

The lead attorney in the lawsuit is noted Second Amendment attorney Stephen Halbrook. The complaint can be found here.


  1. Yep, more business for SCOTUS and how many more will die before this is sorted out???

  2. The reason for the Republican party to gain some middle ground... if they don't, the Dems WILL pick the majority for the SCotUS...

  3. A slightly different question here. Just where in the 2nd Amendment, is it stipulated that the right to keep and bear arms is restricted to just the home? Admittedly my eyesight isn't the greatest but I just cannot find that there.