The Second Amendment was Adopted to Protect Liberty, Not Slavery: A Reply to Professors Bogus and Anderson

One of our well-known attorneys at the Second Amendment Law Center answers a question that many have floated recently regarding the origins of the Second Amendment. Read the full article here.

To learn more about the Second Amendment Law Center, the premier Second Amendment advocacy and legal resource center committed to the preservation and protection of the Second Amendment or to donate to causes like this, click here.

And be sure to subscribe to CPRA alerts to stay up-to-date on the Wallingford’s case and other important Second Amendment litigation by visiting https://crpa.org/.

SECOND AMENDMENT LAW CENTER, CALIFORNIA RIFLE & PISTOL ASSOCIATION, ANNOUNCE SUPPORT OF LAWSUIT CHALLENGING RESTRAINING ORDER FIREARM PROHIBITION

Imagine living in the same house with your spouse for over 50 years. Your front lawn has a sapling that, over the course of time, has grown into a beautifully tall tree. But the neighbor next door who moved in just a few years ago doesn’t like the tree, so she conspires to falsely accuse you of assault and battery after you refuse to remove it. You get arrested as a result. She then seeks a restraining order against you based on her false allegations, files both a civil case and small claims case against you, and to top it all off, California law takes away your right to own or possess firearms in connection with the restraining order—before you even have a chance to respond.

Think it can’t happen? Well, that is exactly what happened to Richard and Miranda Wallingford. Only their story gets much, much worse.

As a result of their new neighbor’s false allegations, the Wallingfords hired a home-security company to install cameras on their property. Their purpose was to prevent the neighbor from making additional false allegations in the future. Immediately after installation (but before a hearing on the restraining order petition was held), the cameras captured the neighbor making threatening gestures and attempting to damage the Wallingford’s tree. These images were shown to the court at the restraining order hearing, which ultimately concluded that the Wallingfords did nothing wrong and dismissed the petition against them. The criminal assault and battery investigation was dropped by the police, both the small claims case and civil case were dismissed, and the Wallingford’s firearm rights were also reinstated.

This is where the Wallingford’s horror story should have ended.

At the restraining order hearing, the Wallingfords went on record to state they simply wanted to put the matter behind them and ask the neighbor to cease and desist her hostile behavior. That of course did not happen. Late in the evening on the same day the neighbor’s civil case was dismissed, the security cameras captured the neighbor coming onto the Wallingford’s property and pouring bleach on the tree. The Wallingfords called the police, but the police took no action.

The neighbor’s behavior continued to escalate. She was recorded yelling verbal threats of violence from her front yard and making several throat-slitting gestures directed at the Wallingford’s cameras, at least one of which involved the use of a knife or similar cutting instrument. Now in fear for their personal safety, and seeing no other option at this point, the Wallingfords filed a petition seeking a restraining order against the neighbor.

Wallingford neighbor2.png

Just one of several sets of images of the Wallingford’s neighbor standing in her front yard making threating gestures in full view of the public neighborhood.

But before a hearing on the Wallingford’s petition is held, the neighbor again files a petition seeking a restraining order against the Wallingfords. This time, the neighbor claimed the Wallingford’s security cameras constituted harassment while also raising the same allegations of assault that were previously ruled on and dismissed.

Astoundingly, the court granted the neighbor a temporary restraining order, resulting in the Wallingford’s once again losing their Second Amendment rights until a formal hearing could be held. Worse still, the court later recognized that it mistakenly read the neighbor’s petition to include new allegations of assault—not the same allegations raised previously. Had it not made this mistake, it would not have issued a temporary restraining order. Nevertheless, the court refused to dissolve the temporary restraining order until a formal hearing could be held 60 days later.

Upon first learning of their neighbor’s complaint about their security cameras, the Wallingford’s immediately repositioned the cameras to ensure only their property was in the cameras’ field of view. They did so despite the areas of the neighbor’s property also being captured were publicly visible from street.

Although the court ultimately granted the Wallingford’s petition for a restraining order against the neighbor because it found “no legitimate purpose to making a throat-slashing gesture towards [the Wallingford’s] security cameras, or to mooning the cameras, spraying the cameras with water, or other similar conduct,” the court also found the Wallingford’s security cameras constituted harassment. But the court also expressly noted the cameras “have since been repositioned such that they point only at areas of the [neighbor’s] residence in public view, which the court finds acceptable.” Nevertheless, the court issued a three-year restraining order against them—despite no other findings of harassing behavior or that the Wallingfords are a danger to the public or to themselves. What’s more, there was no evidence that the Wallingfords were directly involved in the installation of the cameras to begin with.

As a result of the restraining order issued against them, California law prohibits the Wallingfords from owning or possessing firearms for its entire duration. All because the Wallingfords took the steps any reasonable person likely would have taken to protect themselves after being falsely accused and harassed by a vile and hostile neighbor. And to this day, the Wallingford’s neighbor continues to harass and intimidate the Wallingfords, with no action being taken by law enforcement against her despite multiple 911 calls and the existence of a restraining order against the neighbor.

The Second Amendment Law Center and the California Rifle & Pistol Association are proud to support the Wallingfords in a new lawsuit challenging California’s laws prohibiting them from owning or possessing firearms due to the restraining order issued against them. The Wallingfords, through their legal counsel, are seeking an injunction against the prohibition while the lawsuit is litigated. A hearing on the Wallingfords request for an injunction is currently scheduled for November 1, 2021.

To learn more about the Second Amendment Law Center, the premier Second Amendment advocacy and legal resource center committed to the preservation and protection of the Second Amendment or to donate to causes like this, click here.

And be sure to subscribe to CPRA alerts to stay up-to-date on the Wallingford’s case and other important Second Amendment litigation by visiting https://crpa.org/.

Second Circuit Holds that Individual Rights Under Second Amendment Are About The Individual

Second Amendment Law Center Files Amicus Brief Urging the Supreme Court to Strike New York’s Restrictive Carry Regime

The Second Amendment Law Center (2ALC) is proud to announce that we have filed another critical amicus brief in the United States Supreme Court--this time urging the Court to overturn New York’s overly restrictive carry regime. The challenged law demands that those seeking a license to carry a firearm concealed for self-defense show that they have a special need to do so--effectively banning public carry in many parts of the Empire State. The case is New York State Rifle & Pistol Association v. Bruen (“NYSRPA”).

Joined by our friends at the California Rifle & Pistol Association (CRPA), 2ALC argues that unconstitutional bans on protected conduct, like New York’s effective ban on public carry, are consistently upheld because abuse of the Second Amendment has become the norm in the lower courts, which routinely engage in improper Second Amendment analyses. The goal of 2ALC’s brief is thus to convince the Court to not only strike New York’s unlawful carry regime, but to adopt a meaningful test for evaluating Second Amendment challenges throughout the country. Doing so, the brief argues, will bring much needed clarity to the law for courts and legislatures alike.

2ALC’s input is particularly valuable here, given our attorneys’ work on similar carry lawsuits, including Peruta v. County of San Diego and Flanagan v. Becerra, among others. Recall, in Peruta, 2ALC’s attorneys, representing Edward Peruta and the CRPA, secured an unprecedented ruling from a panel of the Ninth Circuit that would have struck California’s “good cause” requirement. But as 2ALC’s amicus brief recounts, that decision--like essentially every other pro-gun decision in the Ninth Circuit--was reheard en banc and reversed. 2ALC argues that the Ninth Circuit’s en banc treatment of pro-gun decisions, like Peruta, is a symptom of the disease that is the lower courts’ disdain for the Second Amendment.

2LAC is hopeful that the Supreme Court will issue a decisive opinion in NYSRPA that ends the courts’ (mis)treatment of the Second Amendment as a “second-class right” once and for all. But no matter the outcome, CRPA stands ready to continue its nationwide fight against unconstitutional restrictions on your right to keep and bear arms.

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2ALC supports many cases just like this one across the country because it is important to protect the rights of the citizens against government over-reach. If you would like to support ongoing cases like these, please consider giving to build the 2ALC Litigation Fund.

California’s “Assault Weapon” Ban Ruled Unconstitutional

United States District Court Judge Roger Benitez meant it when he took his oath to uphold the Constitution as he was sworn in as a federal judge in 2004. Indeed, in recent years, he delivered bold and comprehensive pro-Second Amendment decisions in Duncan (challenge to magazine capacity limits) and Rhode (challenge to ammunition sales bans and background checks). And, on June 4, 2021, he issued a 94-page opinion in Miller v. Bonta that vigorously scrutinized the “evidence” the state offered in support of California’s “assault weapon” ban, found it woefully inadequate, and declared California’s laws banning common “assault weapons” (like the AR-15) unconstitutional. The arguments Judge Benitez addressed in Miller are the same arguments made in Rupp v. Becerra—a challenge to California’s “assault weapon” ban already on appeal to the Ninth Circuit. (Rupp is fully briefed and argued but is stayed at the Ninth Circuit pending resolution of other important Second Amendment cases noted below).

In his opening paragraph, Judge Benitez observes, “Like the Swiss Army Knife, the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment. Good for both home and battle, the AR-15 is the kind of versatile gun that lies at the intersection of the kinds of firearms protected under District of Columbia v. Heller, 554 U.S. 570 (2008) and United States v Miller, 307 U.S. 174 (1939). Yet, the State of California makes it a crime to have an AR- 15 type rifle. Therefore, this Court declares the California statutes to be unconstitutional.” Judge Benitez further observes, “The Second Amendment protects modern weapons.” A few pages later, he adds, “Modern rifles are popular. Modern rifles are legal to build, buy, and own under federal law and the laws of 45 states.” Perhaps most importantly, Benitez notes that California’s ban on such firearms “has had no effect” on shootings in the state and that “California’s experiment is a failure.”

Judge Benitez’s June 4 ruling in Miller is a final trial decision. Originally, the plaintiffs requested a preliminary injunction—a request for immediate relief, based on limited evidence, to be put in place pending the final resolution of the case at trial based on a complete body of evidence. But, in limited instances when it is appropriate, a preliminary injunction request can be consolidated with a trial. That is what happened in Miller.

Most significantly, this ruling has no immediate impact. Usually when a federal judge enters an order for injunctive relief, that order takes effect immediately. But Judge Benitez’s ruling includes an automatic 30-day stay of his order. This gives the state time to appeal to the Ninth Circuit, which the Attorney General has already promised to do.

WHAT HAPPENS NEXT AT THE NINTH CIRCUIT?

Judge Benitez’s decision to stay his own order out of the gate makes sense. First, the Department of Justice would have no doubt obtained a stay sooner or later, whether from Judge Benitez or under the rule that allows the Ninth Circuit to grant a stay. Recall that both Duncan and Rhode were stayed, albeit with sometime between Judge Benitez’s order and the stays becoming effective. But second, and more importantly, an automatic stay decreases the likelihood of confusion among gun owners caused by a time gap between the entry of Judge Benitez’s order and the entry of the stay—a gap during which “assault weapons” theoretically would have been unregulated. Had there been a gap, some people would inevitably (and illegally) modify and reconfigure their presently California-compliant firearms into “assault weapon” configuration. This would be a big mistake.

We know with certainty that the state will appeal Miller to the Ninth Circuit. It will then take at least a year for a final ruling from a standard three-judge panel if there are no extended delays. But the Miller appeal will almost certainly be stayed at the Ninth Circuit, pending rulings in other important Second Amendment cases—like Duncan, Rhode, and Rupp—that are already on appeal at the Ninth Circuit. So, an extended delay is likely.

Indeed, Second Amendment law in the Ninth Circuit is facing a bottleneck right now. The reason is the extraordinary success of Duncan. Duncan won at both the district court level (in Judge Benitez’s courtroom), and then won again before a three-judge panel at the Ninth Circuit. In line with the Ninth Circuit’s hostility toward the Second Amendment, an 11-judge en banc panel will rehear Duncan on June 22nd. Because Duncan could have a tremendous impact on Second Amendment law in the Ninth Circuit, other Second Amendment cases at the appeal stage have been “stayed” or “held in abeyance” pending the resolution of the Duncan en banc rehearing. That is the situation with Rupp, Rhode, and likely with Miller.

THE MOST RECENT CHALLENGE TO CALIFORNIA’S “ASSAULT WEAPON” BAN

Efforts to overturn California’s magazine ban in Duncan and ammunition laws in Rhode are just two fronts in a sophisticated legal campaign to defend the Second Amendment. Long before Miller, Second Amendment Law Center attorneys launched a direct challenge to California’s “assault weapon” ban that is already at the Ninth Circuit. That matter, Rupp v. Becerra, was filed in April 2017 and has been on appeal since August 2019.

The Rupp case is fully briefed and argued but is stayed at the Ninth Circuit pending resolution of Duncan. The Ninth Circuit panel of judges decided to essentially pause the case, because of the impact that the Duncan en banc rehearing (scheduled for June 22, 2021) may have on Second Amendment law in the Ninth Circuit.

Regardless, Rupp is ahead of Miller in the Ninth Circuit, challenges the same laws, involves the same legal issues, and has already been argued. So, while it is heartening to read another brilliant evisceration of California’s gun control regime penned by Judge Benitez, Miller will likely have little impact and will be caught up in the bottleneck of cases already waiting at the Ninth Circuit.

WHAT WILL THE SUPREME COURT DO?

The Supreme Court will soon hear New York State Rifle & Pistol Association, Inc. v. Corlett, which will very likely reset the legal test that courts apply to Second Amendment questions. The current composition of the court makes a pro-Second Amendment decision look very possible.

Because the Ninth Circuit is just as aware of this as we are, there is a good chance that the Ninth Circuit will stay Duncan, citing Corlett as the reason, after it conducts the en banc oral argument in Duncan. If that happens, then all the cases that are being stayed pending Duncan will essentially remain stayed as well until the Supreme Court issues its Corlett decision—including this most recent ruling in Miller.

So, for now, we have room to be cautiously optimistic that the hard work already done in California’s courts will have a meaningful chance to truly change the scope of gun rights in the state.  That said, we will have to be patient and await what unfolds in the Supreme Court.

We are planning the march to the Supreme Court now and you can help! Please donate today to build the funds and protect the Second Amendment-DONATE TODAY

Second Amendment Law Center File Amicus Brief Urging the Supreme Court to Review Unconstitutional Magazine Capacity Restrictions

The newly formed Second Amendment Law Center is proud to announce that it has filed another critical amicus brief in the United States Supreme Court—this time, in support of a petition for certiorari in Association of New Jersey Rifle & Pistol Clubs v. Grewal. The case asks whether New Jersey’s ban on magazines over ten rounds (so-called “large capacity magazines”) violates the Second Amendment.

2ALC’s input is particularly valuable here, given our attorneys’ success in Duncan v. Becerra, the federal lawsuit challenging California’s similar magazine ban under the Second Amendment and the Takings Clause. With that unique experience in mind, 2ALC’s amicus brief provides a detailed comparison of the New Jersey case and the Ninth Circuit’s recent pro-gun ruling in Duncan, giving the Court a clear snapshot of the diverging paths that the circuits have taken.

Joined by the California Rifle & Pistol Association and Gun Owners of California, 2ALC argues that unconstitutional bans on otherwise protected conduct, like possessing common magazines over ten rounds, are only upheld because mistreatment of the Second Amendment has become the norm in the lower courts. Indeed, district and circuit courts routinely engage in watered-down Second Amendment analyses that all but guarantee that any gun control law subject to them will survive. The goal of 2ALC’s brief is to urge the Court to grant review of ANJRPC v. Grewal and begin to correct this dangerous trend.

For over a decade, the Supreme Court has been mostly silent on the Second Amendment, despite a flood of petitions asking it to review gun control laws from across the country.  With the recent grant of review in New York State Rifle & Pistol Association, Inc. v. Corlett, a case concerning the right to carry, the High Court is finally poised to speak. But as 2ALC’s brief argues, it is not enough for the Court to decide just one Second Amendment issue after all these years. Given the mischief that has run rampant in the lower courts, there are countless gun-rights questions requiring the Court’s attention. And, as 2ALC points out, this includes the question of whether the government may flatly ban arms in common use for lawful purposes, like magazines over ten rounds.

2ALC is optimistic that the Court will grant review of ANJRPC so that the long overdue house-cleaning of poor Second Amendment decisions reached by lower courts can truly begin.

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2ALC supports many cases just like this one across the country because it is important to protect the rights of the citizens against government over-reach. If you would like to support ongoing cases like these, please consider giving to build the 2ALC Litigation Fund.

Second Amendment Law Center Secures Supreme Court Victory in Caniglia v. Strom

Today the Supreme Court handed gun owners a big win in a case that was supported by Second Amendment Law Center, through amicus brief, regarding prohibition of expansion of warrantless searches. Caniglia v. Strom is a case that addressed a rarely used “community caretaking exception” to a search warrant which a lower court upheld. The lower court citing that “police officers often have noncriminal reasons to interact with mo­torists on “public highways,” 413 U. S., at 441, the First Cir­cuit extrapolated a freestanding community-caretaking ex­ception that applies to both cars and homes. 953 F. 3d, at 124 (“Threats to individual and community safety are not confined to the highways”).” Basically, the First Circuit tried to make a connection between the more liberal search parameters that may be used for vehicle searches to those that may be used in searches of a private home. If this lower court ruling were allowed to stand, the expansion of government intrusion into the homes of citizens without a warrant would be devastating.

The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fourth Amendment does not prohibit all searches and seizures, just those that are unreasonable. The Supreme Court found in Caniglia that entering the home of an individual without the probable cause found in a search warrant was unreasonable. The Court found that “[t]he First Circuit’s 'community caretaking' rule, how­ever, goes beyond anything this Court has recognized.”

2ALC President Chuck Michel commented that “this is a great decision in the protection of civil liberties for all citizens. When the government looks to expand its reach into areas that are clearly unconstitutionally expanding its purview, we must fight back against that expansion. This is exactly why the Second Amendment Law Center felt it was so important to be involved in this case.”

2ALC supports many cases just like this one across the country because it is important to protect the rights of the citizens against over-reach from government. If you would like to help in supporting ongoing cases like these, please consider giving to build the 2ALC Litigation Fund.

2nd Amendment Law Center Congratulates Charlotte County, VA-Second Amendment Sanctuary County

As the premier Second Amendment law organization in the country, the Second Amendment Law Center is proud to recognize Charlotte County, Va. for their efforts to support, defend, and protect the constitutional rights of their citizens.

The right to keep and bear arms, as stated in the Second Amendment of the United States Constitution, is fundamentally an individual right and not, as many wrongly claim, a “collective” right of state governments to arm a state militia. In fact, the United Supreme Court ruled on this individual, fundamental right in District of Columbia v. Heller, 554 U.S. 570 (2008).

The Second Amendment Law Center strongly supports the actions of the Charlotte County, Va. Board of Supervisors to limit restrictions on citizens in exercising their constitutional rights and protecting their citizens from government infringement.

Click Here To Read Our Letter of Support to Board of Supervisors.

2nd Amendment Law Center Supports Texas Permitless Carry

The right to keep and bear arms, as stated in the Second Amendment of the United States Constitution, is fundamentally an individual right and not, as many wrongly claim, a “collective” right of state governments to arm a state militia. We are dedicated to reinforcing the Second Amendment’s solemn command that our government never unduly restrict law-abiding individuals from responsibility owning and using firearms. To that end, Second Amendment Law Center commends the State of Texas for protecting the Second Amendment rights of its citizens.

Click Here To Read Our Letter to Governor Gregg Abbott.

Second Amendment Law Center Files Amicus Brief in Supreme Court Case

The Second Amendment Law Center worked with other Second Amendment advocacy groups to file an amicus brief in the case Caniglia v. Strom. This case questions whether the “community caretaking” exception to the Fourth Amendment’s warrant requirement extends to the home.

Application of warrantless “community caretaking” searches to houses would violate the explicit text of the Fourth Amendment, would be inconsistent with the common-law tradition that one’s house is one’s castle, would have been anathema to the Founders, and would mark an unprecedented, dangerous departure from this Court’s jurisprudence. Existing exceptions to the warrant requirement more than suffice to meet society’s needs consistent with the basic premise and sanctity of the Fourth Amendment.

Among the other privacy interests at stake is that of the right to keep and bear arms under the Second Amendment. As this Court’s precedents demonstrate, there is no “gun” exception to the Fourth Amendment. The handful of lower courts that apply “community caretaking” to the home hold or suggest that a person has no right to his or her own firearm if seized, because one can buy another one. That makes a mockery both of the right to keep arms and the right against unreasonable searches and seizures. The traditional, narrow exceptions to these rights suffice without opening the floodgates to an exception that would swallow the rule.

The common law established that one’s house is one’s castle and that general warrants are invalid. Our Founders heightened those principles in opposing the writs of assistance, the first states declared against general warrants and in favor of the right to bear arms, a declaration of those rights was demanded when the Constitution was proposed without one, and the discussions on what became the Bill of Rights explain why those rights were considered so fundamental.

Applying the “community caretaking” function to the home will be used as a pretext to conduct warrantless searches for firearms. That will particularly occur in the jurisdictions with the most onerous restrictions on firearms. As existing cases exemplify, officers will not bother to obtain warrants based on probable cause and instead will conduct searches based on speculation that a firearm might be present in a house and thus that someone might supposedly be in danger. The doctrine of exigent circumstances suffices to cover real emergencies without allowing the onslaught of warrantless searches that would follow if the “community caretaking” doctrine is applied to houses.

To Read the Complete Brief Click Here