The Heller Gun Decision Week 6--Career Ending Decisions Being Made?

In terms of political fallout, as I noted above, there are Democrats who if they are not careful are putting themselves at risk in a primary – particularly if they come from suburban districts in States that have licensing-registration statutes – including California, Michigan, and Pennsylvania. Or it may create an opening for a Moderate Republicans to drive a wedge between Democratic Congresspersons and their base.

I have come to the conclusion that HR 6691 is so poorly thought out and drafted that any Democrat who votes for this bill in this form is making a Career Ending Decision in a primary – and it has anti gun provisions because of poor drafting. Or if that Democrat is running in a swing district against a Moderate Republican, this bill creates a wedge wider than a Mack truck between that Democratic Congressperson who supports the current version of HR 6691 and his or her base. It is a very fortunate fact that Representative Tom Davis (R-VA) is no longer running the RCCC as several coauthors of the “new and improved” DCPPA aka HR 6691 would be in the Republican version of the Zeltner Masher Basher I do not make these comments lightly. The problem here is that “Lets make a deal” in a short period of time results in major-major politically mortal mistakes.

I have the highest degree of respect for the lead negotiator on HR 6691, to wit Congressman John Dingell of Michigan. If you look at Congressman Dingell’s overall record, he on numerous occasions has placed his own position in jeopardy by taking courageous stands. I understand why Speaker Pelosi regards John Dingell as a point person on gun issues. He did a great job on the NICS Improvement Act but in that case the legislation had been vetted for years and the NRA needed to get the record keeping issue resolved. This issue was not and it is therefore a totally and completely deficient piece of legislation.

As I said, I am mocking the legislation up and will do an in depth posting next week. However, this new legislation based on my initial – but in-depth analysis - is that this legislation is the antithesis of the Highest Rule of Leadership: MEMBER PROTECTION. Speaker Pelosi has stated that she opposes this “compromise” but will take a wait and see attitude on whether this “new and improved” DCPPA deserves a vote. The terms of introduction leave this issue up to her. She also apparently reads my blogs. I will next week have the Irwinized (A California term of art) proposal to fix the DC situation.

But we must remember why DC finds itself in this situation. First, in all my comments with people about DC with people who live in that region – save for one or two reporters - every single person who has weighed in on this lives in either Virginia or Maryland. Indeed, the NRA is located in Virginia. As such, this is indeed a situation where DC residents are indeed at the mercy of others. However, the reason DC is in this situation is that its leaders have maneuvered themselves into this situation – with few defenders.

Secondly, rather than complying quickly with not only the letter but also the spirit of Heller by substantially relaxing the trigger lock requirement to be like a CAP law if there is to be a trigger lock requirement at all, having a fast tracked registration procedure, and registering all semiautomatic handguns sans large clips (as Congress intended in 1932), the DC Leadership has done everything WRONG. The reality is that that DC has no defenders in Congress – despite its large African American population - because African American members of Congress who could shut this down in a nanosecond are embarrassed by the District’s behavior.

In the rural South – and that has been where African American representation in Congress has increased from - African Americans own and have owned guns not only for hunting but also to deal immediately with any KKK style activity since Reconstruction. These are primarily single shot or old side-by-side shotguns and “break open” rifles – for generations with these family guns handed down from one generation to the next. In this State, some have asked who were the catalyst for the exemption on mandatory “through dealer” processing on interfamilial transactions, “operation of law” and on spousal transactions – though as to handguns there is a “self reporting” handgun registration paperwork process. The answer is that at the time these proposals were being enacted and discussed former Assemblywoman Marguerite Archie Hudson (who was born on Yonges Island, South Carolina and was raised in rural South Carolina) would continually call me aside to talk about these issues. We would discuss these issues and what procedures should be adopted with Marguerite ALWAYS talking about family traditions that she had grown up with or heard about in the Rural South. African Americans are NOT NRA sycophants BUT neither are they reflectively anti-gun.

As I noted in one of my earliest articles on Heller, Justice Scalia noted in Heller that it is indisputable that the framers of the 1866 Civil Rights Act (remember that Heller was a Privileges and Immunities case because of 42 USC 1983) and the 14th Amendment on which it was based sought to wipe away Dred Scott and to provide all citizens certain basic civil rights which included the right to keep and bear arms – consistent with the Common law. One of the discriminations hoisted upon the newly freed African Americans were the odious Black Codes which sought to re-enslave them and in effect force them into a state of peonage. It is out there in the African American Community that they are the historical catalyst for Heller. Almost every African American I have talked with about gun issues post Heller – and I get questions all the time from everyone about guns because of somebody dying, someone wanting to assure that their 19 year old going back to college can have a gun in his or her residence, etc. - are very aware (and with a high degree of pride and satisfaction) of whose struggles resulted in the Scalia opinion. Giving due credit to the speechwriting of President Lincoln, in a very real sense the result in Heller has a direct lineage to the struggles of those who fought, died and made hallowed ground Battery Wagner, Port Hudson, and Olustee and gave the last full measure of their devotion so that this Nation could indeed have a new Birth of Freedom.

Third, I alluded to a lot of hanky-panky in the Illinois litigation. I got an email about this asking about this and who did what to whom. I will simply point out the facts off of the Court docket.

In order to make a motion – at least in California State Court – by virtue of statute there is at least 2 weeks notice unless an order shortening time is granted. In state court the notice of motion is in effect deemed the motion if the specific relief requested is in the notice of motion. That is still the case. In the Los Angeles Superior Court in Downtown Los Angeles where I got my combat training, the Clerks in the filing room (supervised by Maggie Brown) and the individual court clerks in the individual departments were sticklers on this. They checked right off the bat the proof of service and whether the notice of motion stated what the relief was. In federal court the time to make motions varies based on local rule. In the Northern District of Illinois it requires 3 business days via personal service (including email through the Court system) or at least 5 business days otherwise.

There are three lawsuits involving Chicago and Oak Park. Suit 1 is McDonald v. City of Chicago (Case # 08-CV-3645) which is the Gura suit. That case was assigned to Judge Shadur. Judge Shadur was appointed by President Carter in 1980 on the recommendation of Senator Stevenson and is well past age 80.

Suit 2 is NRA v. City of Chicago (Case # 08-CV-3697). The lead lawyer in that case is Steve Halbrook but local counsel is Brenner, Ford, Monroe & Scott Ltd with the judge originally Judge Leineweber. He is Reagan appointee, served in the Illinois State legislature and is married to Lynn Martin, former U.S. Secretary of Labor under Bush 41.

The third case is NRA vs. Oak Park (Case # 08-CV-3696) with the original Judge Joan Humphrey Lefkow. Halbrook is the lead lawyer but the NRA is using Freeborn & Peters as discreet local counsel in that case. Judge Lefkow is an interesting person. She is a Clinton appointee. On February 28, 2005, Lefkow returned home to find the bodies of both her husband and mother dead in the basement of her North Side home. Judge Lefkow and her children were placed under the protection of the United States Marshals Service. On May 18, 2005, Judge Lefkow testified before the U.S. Congress on the problem of providing security for judges, placing some of the blame for the attack on her family on rhetoric against judges issued by persons such as Pat Robertson. She has been an advocate of allowing federal judges to carry guns notwithstanding local state laws.

In any event, the City of Chicago case was reassigned to Judge Shadur on July 22. On July 23, 2008 the City of Oak Park filed a motion to reassign the Oak Park case to Judge Shadur pursuant to Local Rule 40.4(c) with a view I suppose to in effect consolidate all three cases for judgment as they all arguably involve the same issues of law and fact: (i) Case # 08-CV-3645; (ii) Case # 08-CV-3696; and (iii) Case # 08-CV-3697.

Per Pacer which is a federal court system (8 cents a page charged via Visa/Mastercard) document retrieval system, I ascertained that the attorneys for Oak Park made a motion for reassignment to Judge Shadur to have McDonald, Oak Park and Chicago defacto joined (and Oak Park has not been served but made a general appearance anyway) with a proof of service sent as follows: (i) via email to Team Gura’s local counsel (David Sigale); and (ii) via US Mail and facsimile to counsel on both sides to the NRA v. Chicago and to plaintiff counsel in NRA vs. Oak Park and also to Alan Gura who is head of Team Gura in McDonald. Halbrook was served as lead counsel in both NRA actions. On July 29, Judge Shadur GRANTED Oak Park’s “reassignment motion”.

However, on July 29, 2008, after NOT showing up claiming it was never served via fax and the mailed copy was received on July 29th after the hearing, NRA’s local counsel in Oak Park moved to vacate the reassignment order and Oak Park apparently is not opposed to a “second look” at this by Judge Shadur. The NRA plaintiffs in Oak Park disputed the “reassignment” on the basis that Chicago and Oak Park’s ordinances have material differences and the relief sought by the NRA in the two lawsuits materially differ from each other.

Merits aside, we have another one of these “whose on first issues?” Either, Oak Park’s lawyer never sent the fax (always get a confirmation) or it did send the fax and NRA’s local counsel in Oak Park never received the FAX from support staff. It also raises communications issues between Mr. Halbrook and NRA’s local counsel. What this does point out that even in the electronic age, there needs to be adequate notice. As Justice Rushing of the Sixth District Court of Appeal for the State of California noted this March, “The fundamental precept of due process is that before official action may be taken in derogation of an individual’s rights, liberties, or property, the individual must be permitted a fair opportunity to appear before the decisional authority and show, if he can, why the proposed action should not be taken. Ferraro v. Camarlinghi, (2008) 161 Cal.App.4th 509, 517

In any event, the McDonald Plaintiffs (Team Gura) want to expeditiously move McDonald along. They have filed motions to strike several portions of the City of Chicago’s answer pursuant to Federal Rule of Civil Procedure 12(f)(2) and have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

As to the Rule 12(f) motion in reviewing the same there is no doubt that both Alan Gura and local counsel Daniel Sigale learned civil procedure well at Georgetown University Law Center. In law school, one of my professors remarked that as long as an attorney had civil procedure law and evidence law down pat, he or she could pick up what he or she needed to know about the relevant substantive law by resort to practice and other guides in terms of a specific litigation issue. The converse is not true. While Gura and Sigale know what they are doing, I am not sure that the legal team for the City of Chicago can say the same.

While some had thought that the Rule 12(f) motion was to strike insufficient defenses, the 12(f) motion is not being used to raise issues of law that the City has no legal defense to the action as that type of motion rarely succeeds unless the defense is frivolous. See, e.g.: Waste Management Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001), cert. den. 535 U.S. 904 (2002); U.S. Commodity Futures Trading v. A.S. Templeton, 297 F.Supp.2d 531, 531(E.D.N.Y. 2003). Rather this motion is directed at striking answer to specific paragraphs in the McDonald Complaint on the grounds that given these denials contradict public documents in the city’ own records – and should be therefore aware of – those denials were false. A false answer to an allegation is deemed to be “sham” and thus should be stricken under Rule 12(f)(2). The effect of this – if the Motion is granted - is that it results in various allegations of the complaint being deemed true. While this does not mean that McDonald ergo wins, it does remove certain “exhaustion of remedies” issues referenced below. The McDonald plaintiffs have also moved for summary judgment pursuant to Federal Rule of Civil Procedure 56 in McDonald.

Team Gura per the proof of service have also served via electronic means NRA’s City of Chicago Counsel in terms of the local counsel and Halbrook. Judge Shadur held a defacto status hearing on Friday (8/1/2008) and accepted but continued the motions for summary judgment and motion to strike, required the NRA in Oak Park to file additional papers on the motion to vacate, and set a hearing on August 18th.

The McDonald plaintiffs argue in the Rule 56 motion: (i) that the Second Amendment is a privileges and immunity of US citizenship – ipso facto incorporated under the 14th Amendment or that it is a liberty interest protected under the 14th Amendment’s Due Process clause; and (ii) while they do not challenge gun registration per se, they seek to bring Chicago’s gun registration into compliance with constitutional standards. In that regard they attack re-registration and several aspects of the Chicago ordinance on equal protection grounds.

One of the arguments against interpreting the Privileges or Immunities Clause as a requirement that the states comply with the Bill of Rights has been that such an interpretation would render the Due Process Clause of the Fourteenth Amendment redundant, due to the Fifth Amendment's Due Process Clause. Although constitutional scholars such as Raoul Berger have raised this question, an answer has been detailed by Yale Law Professor Akhil Amar who is cited in the Rule 56 motion moving papers by McDonald.

According to Professor Amar, the framers of the Fourteenth Amendment wanted to extend the due process right not only to citizens, but to all other persons as well, which required a separate Due Process Clause. Although the Fifth Amendment refers to "persons" and not "citizens" within its text, it would only be incorporated by the Privileges or Immunities Clause as to citizens. (Amar, Akhil. The Bill of Rights and the Fourteenth Amendment, 101 Yale Law Journal 1193, 1224-1225 (1992).)

A similar redundancy issue is posed by an interpretation of the Privileges or Immunities Clause that views it as simply a guarantee of equality. Proponents of that interpretation acknowledge that, "The natural response to this approach is to say that ... any equality-based reading of the clause is redundant because the Equal Protection Clause provides the necessary ground and more." See: Harrison, John. Reconstructing the Privileges or Immunities Clause, 101 Yale Law Journal 1385, 1418 (1992). The other difference is that the privileges and immunities clause works in a narrower fashion – and thus maybe more appealing in that context – is that it substantively only applies to US Citizens which means that who can claim the right is much narrower.

In the Second Amendment there is a further delimiting principle that argues not for “selective incorporation” via substantive Due Process but via “privileges and immunities”. The Second Amendment applies and creates a right solely in “the People” and the privileges and immunities clause of the 14th Amendment applies solely to Citizens. The term “the People” is used repeatedly in the Constitution which delimits who can claim what rights. As the United States Supreme Court noted in United States v. Verdugo-Urquidez, [494 U.S. 259 (1990)], the term “The People” is a term of art employed in selected parts of the Constitution. Verdugo-Urquidez held that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community. 494 U.S. at 265-266. Use of the privileges and immunities clause (“PIC” per Bob Levy) as the means of incorporation removes a host of issues as to non citizens being able to possess and acquire guns and ammunition.

As to what Chicago is – and is not – willing to do to resolve this matter is as clear as mud. Mayor Daley held a rather bizarre press conference last week which was reported in the Chicago Sun Times. Given that Senator Obama’s relationship with Mayor Daley is to say the very least “strained” it is unlikely that any one can put any pressure on Daley other than Judge Shadur.

Fourth, the New York Sun carried a story with the byline that Gun Rights May Rest on Hot Dog Vendor's Case. The Sun article concerned Daniel Vargas who is in court to fight misdemeanor charges (based on criminal possession of a weapon in the fourth degree per New York Penal Law § 265.01[1] – Class A misdemeanor – up to 1 year in local facility) in that he kept an “unlicensed” (really a handgun not registered to him) loaded on a basement shelf in his apartment. That case - as the Sun noted – has generated 23 hearings and has been heard by no fewer than 10 different judges as it winds through Kings County’s (Brooklyn) lowest criminal court. Vargas is after the fact in effect challenging the licensing procedure in the State of New York. As I noted last week, illegal gun possession in New York is generally a misdemeanor. While some have argued that Mr. Vargas’s case is a vehicle for incorporation, there are several flaws in this approach using Mr. Vargas – even though the only charge in his case – which is unique – is illegal possession. The first is his failure to use the “get legal” process. The other is his immigration status.

In Heller, the Supreme Court unanimously upheld licensing and registration – indeed in Chicago the challenge is to the manner of registration but all of this is being done via 42 USC 1983 civil rights actions (with loser pays attorneys fees per 42 USC 1988). Mr. Vargas could have had handled this as a civil matter. As I noted last week, New York has a “get legal process” which involves surrender of the gun pursuant to New York State Penal Law § 265.20[1](f) which also immunizes the prior possession. The gun must then be held for up to one year – due to a 2006 statutory change that the NRA helped get enacted to New York Penal Law § 400.05[6](f). (DC also has a voluntary surrender process. See D.C. Code § 7-2507.05 (a). See: Lewis v. United States, 871 A.2d 470 (D.C. 2005))

Prior to the expiration of the one year time period, a person who surrenders the gun has the right to arrange for the sale, or transfer, of such firearm to a dealer in firearms licensed in accordance with this the Penal Law or for the transfer of the gun firearm to himself or herself provided that a license therefore has been issued in accordance with the relevant law. If no lawful disposition of the firearm is made within the time provided, the firearm is declared a nuisance and is disposed of in accordance with the nuisance statute.

In a decision last year rejecting Mr. Vargas's Second Amendment claims, Judge Alexander Jeong, focused on the very point that Mr. Vargas had never utilized the “get legal process” and had never sought a license. The “get legal” process, allows people to apply for a license. It thus makes these types of criminal law challenges very-very difficult. Vargas by and through his counsel argues that applying for a permit is a futile act. Though in fact it may be indeed be a “futile act”, under a subset of principles entitled “exhaustion of administrative remedies” which is related to but distinct from standing principles that apply outside the 1st Amendment context, “exhaustion” generally mandates that application and rejection be done as a prerequisite to a suit challenging a licensing-registration system. The relevant New York rule was set forth the Appellate Division of the Third Department of the New York Supreme Court in Pantel v. Workmen's Circle/Arbetter Ring Branch, 281 [735 N.Y.S.2d 228 (N.Y. App.Div. 3rd Dept. 2001)] ('Generally, the doctrine of exhaustion of administrative remedies requires ‘'litigants to address their complaints initially to administrative tribunals, rather than to the courts and … to exhaust all possibilities of obtaining relief through administrative channels before appealing to the courts' ‘ (Citations omitted)." 735 N.Y.S.2d at 229.

As such, there are some exceptions to the exhaustion requirement. One such exception is when someone is statutorily ineligible for a license – and seeks to challenge the licensing process itself but that is rare. See: Bach v. Pataki, 408 F.3d 75, 82-83 (2nd. Cir. 2005), cert. den. 546 U.S. 1174 (2006). Indeed, in Heller itself Mr. Heller requested to register a revolver and even though his application was – and he knew it would be – rejected, he went through the process.

In contrast to other jurisdictions, California is much more liberal in terms of who can bring suits. That is because of CCP § 526a which authorizes taxpayer suits to enjoin illegal actions. Because of Section 526a, a number of the standing requirements do not exist. Indeed, as the appellate courts of this state have repeatedly noted the purpose of CCP § 526a, which applies to citizen and corporate taxpayers alike, is to permit a large body of persons to challenge illegal statutory provisions whose enforcement is an illegal and hence wasteful expenditure of taxpayer funds government that otherwise would go unchallenged because of the standing requirement. Blair v. Pitchess, (1971) 5 Cal.3d 258, 267-268. To this end, the statute has been construed liberally. Blair, supra. Therefore, although by its terms the Section 526a applies to local governments, it has been judicially extended to all state and local agencies and officials. Farley v. Cory, (1978) 78 Cal.App.3d 583, 589; Los Altos Property Owners Assn. v. Hutcheon, (1977) 69 Cal.App.3d 22, 30. While the statute speaks of injunctive relief, taxpayer standing has been extended to actions for declaratory relief, mandamus and, in some circumstances, damages. Van Atta v. Scott, (1980) 27 Cal.3d 424, 449-450.

A second issue in the Vargas litigation is Mr. Vargas’s immigration status. He apparently is an immigrant from the Dominican Republic who is in his early 40s. As I noted above, the Second Amendment applies to “the People” and the privileges and immunities clause of the 14th Amendment applies solely to Citizens. Therefore, absent Mr. Vargas showing that his at the very least a permanent resident alien (Green Card holder and the gun issue may affect his green card status) and better yet a naturalized US Citizen, he probably cannot use Heller to his defense.

Since the mid 1980's Irwin Nowick has worked for the California State Assembly and State Senate on a plethora of policy issues, most notably firearms legislation. He has been described as "The Assembly's resident genius" by a former Speaker of the Assembly and is seen frequently in the Capitol hallways and offices assisting legislators in drafting and amending pending legislation.