Post-McDonald Challenges to Gun Laws—From the Second Amendment Foundation and, Believe It or Not, the ACLU

New legal challenges to state and local laws restricting Second Amendment rights allowed by last month's decision in McDonald v. Chicago are rolling out.

From the same team of lawyer Alan Gura and institutional plaintiff Second Amendment Foundation (SAF) that fought and won McDonald comes Kachalsky v. Cacase. Details from the SAF press release:

The Second Amendment Foundation has filed a federal lawsuit against Westchester County, New York and its handgun permit licensing officers, seeking a permanent injunction against enforcement of a state law that allows carry licenses to be denied because applicants cannot show “good cause.”

SAF is joined in the lawsuit by Alan Kachalsky and Christina Nikolov, both Westchester County residents whose permit applications were denied. Kachalsky’s denial was because he could not “demonstrate a need for self protection distinguishable from that of the general public.” Nikolov’s was denied because she could not demonstrate that there was “any type of threat to her own safety anywhere.”...

Under New York Penal Code § 400.00, handgun carry permit applicants must “demonstrate good cause for the issuance of a permit,” the lawsuit alleges. This requirement violates the Second Amendment, according to the plaintiffs.

“American citizens like Alan Kachalsky and Christina Nikolov should not have to demonstrate good cause in order to exercise a constitutionally-protected civil right,” noted SAF Executive Vice President Alan Gottlieb. “Our civil rights, including the right to keep and bear arms, should not be subject to the whims of a local government or its employees, just because they don’t think someone ‘needs’ a carry permit...."

The Kachalsky complaint.

And from a far more unexpected place, the American Civil Liberties Union in Florida is suing the Broward County sheriff's office pro bono to help a man get his guns back. Details from the Sun-Sentinel (Full disclosure: I was a paperboy for the Sun-Sentinel when I was 12 years old.):

That the ACLU, a long-time target of conservatives' scorn, is supporting gun ownership is "a breath of fresh air," said Marion P. Hammer, board member of the National Rifle Association....

Is this new alliance a sign of the apocalypse?

Not really, says Fort Lauderdale attorney Barry Butin, a cooperating attorney for the ACLU of Florida's Broward Chapter who is representing the gun owner, Pompano Beach retiree Robert Weinstein.

Two recent U.S. Supreme Court decisions have affirmed the right to maintain guns in the home.

"Under the Second Amendment, he has a right to have his guns in his house. He's not a convicted felon," Butin said. "It is unusual for the ACLU. But the ACLU supports all constitutional rights. We don't pick and choose."....

Weinstein, a retired bar and restaurant owner from Hartford, Conn., had his weapons seized in February after Dana, his wife of 61 years, died. He told the Broward Medical Examiner's Office that he wanted to "blow his head off," according to a sheriff deputy's report.

He said he was upset because three weeks after Mrs. Weinstein died, her ashes still hadn't shown up at the funeral home that was to bury them.

Weinstein's call to the medical examiner prompted a visit from a sheriff's deputy, who took the widower to a hospital for evaluation.

Weinstein said he agreed to surrender his Colt semi-automatic .25-caliber pistol and his Wesson .357 revolver, along with ammunition and holsters, for safekeeping after authorities insisted on it.

A hearing on his petition is scheduled before Circuit Judge Dale Ross on Monday.

Robert Weinstein insists authorities took his comment about killing himself out of context. And although Florida's Baker Act allows people with mental illnesses to be involuntarily admitted to a hospital, that did not happen to him.

Butin said he has a doctor's letter certifying that Weinstein is not a threat to himself. His client also has a clean Florida criminal record.

Weinstein, who said he learned to shoot in the military, said his guns were only kept for protection.

Of course, the ACLU does pick and choose where its attention and resources go and doesn't defend all constitutional rights with the same attention and vigor. Which makes it all the more interesting, and better, that now another ACLU affiliate now has its eyes on the Second Amendment. (The Texas ACLU also acted in defense of Second Amendment rights back in 2007, as Jacob Sullum blogged.) My Reason Online piece about the McDonald decision and its meaning.

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  • Max||

    Please be my porn.

  • Sadist||

    No.

  • ||

    I have a paramedic friend who told me that she once went to a house where the husband had called because his wife had threatened suicide, so they had to take her in for some minimum amount of time and have her declared mentally fit.

    Turns out that he was broke and jobless and sitting on the couch all day, and she was going to call the cable company and get it shut off. Desperate times call for desperate measures...

  • Jason||

    Threadjack:
    Steve Jobs accidentally points out how less strict regulation and community resistance is why Texas has better AT&T reception than San Francisco.

    "In response to a question on poor reception in San Francisco, Jobs notes that in Texas it takes 3 weeks to get a new cell tower approved while in SF it could take up to 3 years because everyone wants better service but no one wants a tower in their backyard."

    From AppleInsider's live coverage.

  • ||

    Liberal NIMBYs? I'm shocked, SHOCKED!

  • Scooby||

    AT&T coverage sucks in Texas. If it's as good as it gets here, then I can't imagine how shitty their service is in SFO.

  • ||

    Of course, the ACLU does pick and choose where its attention and resources go and doesn't defend all constitutional rights with the same attention and vigor.

    Very very true, but it's nice to see that they are no longer just ignoring one of those rights in its entirety.

  • The Angry Optimist||

    The ACLU is not that great a defender of the First Amendment.

    I mean, unless you don't mind using your money for speech you find abhorrent (see: ACLU's support for public financing).

  • Colin||

    PaperboyGate!

  • "Joey" from Blossom­®||

    Whoa!

  • ||

    Of course, the ACLU does pick and choose where its attention and resources go and doesn't defend all constitutional rights with the same attention and vigor.

    I've had three Marines quartered in my house for the past six months and the ACLU does nothing - defend the 3rd Amendment ACLU!

  • omg||

    Their hands are tied - it's a "police action"

  • ||

    How do I get 3 marines in my house?

  • ||

    Haha, +1.

  • BakedPenguin||

    We're at war - the 3d Amendment only comes into play in peacetime.

  • ||

    You do did not have to marry a marine and you did not have to have 2 sons who joined just like their daddy.

  • ||

    See. We told you that if you start respecting an enumerated right it's gonna release a flood of lawsuits.

  • ||

    Kachalsky’s denial was because he could not “demonstrate a need for self protection distinguishable from that of the general public.” Nikolov’s was denied because she could not demonstrate that there was “any type of threat to her own safety anywhere.”...

    I hope those govt officials were smiling when they said that, given how idiotic it is.

  • ||

    Good to see the ACLU taking a few token 2A cases. Good for them.

    I'm still not gonna give give 'em any money, though. Maybe, just maybe, if they bring a case against the new Chicago rules . . . .

    What a target-rich environment for Gura and the SAF.

  • Almanian||

    show “good cause"

    "Cause I want one." Just applied for mine in MI - we'll see how it goes. Fucking government...

  • ||

    You'll have to tell us what's easier to obtain in MI -- a gun license or a medical marijuana license.

  • ||

    I have no problems with criticism of the ACLU for it's occasional inconsistency, but I've long thought it's vilified more than it should be among conservatives and especially libertarians. It's not perfect, but it's an important organization that often does good work. We could use more like it.

  • ||

    Agreed. If they start supporting the 2nd, they're going to get a lot of love from me.

  • Joe||

    Eh, I'd settle for them just stopping being openly hostile to the Second Amendment. We've got the NRA and others who work effectively for gun rights--let the ACLU concentrate on the 1st, 4th, 5th, 8th, etc. where they are the biggest players around.

    They may not work actively, as an organization, for more gun control but their understanding of the Second Amendment is vastly different from that of most Americans. Actions by a few state affiliates aside, the ACLU still states on their website that the believe Heller to be incorrect.

  • ||

    We've got the NRA and others who work effectively for gun rights

    Fixed

  • ||

    My personal experience watching the Hawaii ACLU does not give me warm fuzzies about them.

    They're way short of getting a check from me, so far.

  • Fluffy||

    I think that what has happened is that before McDonald the ACLU could kid itself and say it wasn't clear that gun laws were unconstitutional.

    Post-McDonald the situation is less ambiguous, and there are enough folks at the ACLU concerned about consistency that now they will hit the ground running on some gun cases.

  • ||

    I think it has more to do with money. In fairly conservative states like Florida or Texas this is a good way to improve the bottom line of their regional office coffers. In more conservative areas the ACLU has one hell of a time raising money. This will help them with that. Granted they will use that money in some jackass stunt to sue the Boy Scouts or some other BS. Just don't kid yourself, it has nothing to do with equal protection for the 2nd Amendment.

  • ||

    And from a far more unexpected place, the American Civil Liberties Union in Florida is suing the Broward County sheriff's office pro bono to help a man get his guns back.

    It says volumes about how the ACLU has been greatly subverted by liberals that this is the least bit unexpected.

    But, hey, good for that ACLU chapter.

  • ||

    Goddamn dirty subversive liberals, making Doherty find this surprising.

  • ||

    Are you saying that Doherty's surprise is misplaced, and that the ACLU has in fact been a staunch supporter of 2nd amendment rights, all along?

    Because from watching the ACLU present testimony at our state legislature, I got the impression that they were mighty selective about which civil rights they defended.

  • ||

    Actually I was just mocking your use of the "subverted by liberals" meme, because I'm a dick like that.

    My real opinion is that the ACLU is an imperfect yet valuable organization that does more to advance libertarian ideals than the majority of legal/lobbying/advocacy organizations out there. That's not saying much of course, but I still count them as allies on the balance.

  • ||

    The ACLU is a bunch of local units, some better than others. My impression of the Hawaii chapter is that they have in fact been subverted to some extent by liberals, and are in favor of some illiberal laws that violate the Bill of Rights.

    They aren't consistently in the right enough to get my support.

  • ||

    Just sent this email to the Hawaii ACLU chapter:

    "As a libertarian (civil and otherwise), I'd like to pose this question:

    Does the ACLU of Hawaii support the civil rights of Hawaii residents to fully
    and completely exercise their Second Amendment rights, as that amendment is
    actually written?

    If I were, say, to openly carry an assault rifle in public without first trying
    to get permission from the police to do so, would your organization stand up for
    my right to do so?

    If not, what other portions of the Bill of Rights do you not support?"

  • ||

    Hawaii is almost as bad as Japan in the restriction of ALL firearms...

  • ||

    Hawaii is one of the worst states re: second amendment, though apparently not quite as bad as Illinois or Wisconsin:

    right to carry states

  • LarryA||

    Actually Hawaii is eighth. 2009 Brady gun control scores (pdf):
    CALIFORNIA 79
    NEW JERSEY 73
    MASSACHUSETTS 54
    CONNECTICUT 53
    MARYLAND 52
    NEW YORK 50
    RHODE ISLAND 45
    HAWAII 42
    ILLINOIS 28
    PENNSYLVANIA 25

    D.C. not being a state, is not ranked. Everyone else is lower.

  • ||

    Holy shit, I didn't think ANY place could be worse than Hawaii. Got mothafuckas droppin' science on my cracka ass....Diiiiiaaaaaaaaaammmm...

  • skr||

    We're number one!!!
    We're number one!!!
    We're number oh wait, what?

  • Old Mexican||

    Under New York Penal Code § 400.00, handgun carry permit applicants must “demonstrate good cause for the issuance of a permit,” the lawsuit alleges. This requirement violates the Second Amendment, according to the plaintiffs.

    It also violates the due process provition of the 14th Amendment, since showing "good cause" imposes a burden of proof on a person not accused of any crime.

  • Old Mexican||

    Provision. Sorry. I want to go home, already.

  • thickhamsteak||

    The ACLU is not defending the gun case based on Second Amendment defense, it it taking the case as a Fifth Amendment "due process"/"just compensation" issue.

    The man had property seized and not returned to him and that's all the ACLU cares about - it's just coincidental that they were guns.

    As far as the ACLU is concerned the Second Amendment still doesn't exist.

  • ||

    I am glad to see that SAF is taking up the case against Westchester County. I also have read CPL 400.00 as a handgun owner in New York State. My permit is a Carry Permit; New York issues 2 types of licenses (authorized by CPL 400.00); a premisis possession permit (rarely seen outside of NYC) and a Permit to Carry Pistol or Revolver. The former will allow you about as much freedom as the City of Chicago (although you may travel with your unloaded handgun in a locked case to the NEAREST range for practice); the latter is quite liberal. Reading the law is not only instructive, but necessary for gun owners in New York State and should be a condition of permit issue. Westchester County is one county where the absurd rendering of New York State Law (any)is the norm.

    No where in CPL 400.00 is there a "demonstrate good cause for issue" clause. It is assumed that the mere application for a permit by a law abiding citizen is just cause. However, the problem with NYS is that the permits are usually issued through the County Clerk's office and they have been known to dream up oddball reasons for rejection and the imposition of restrictions that have no basis in CPL 400.00. A permit to posess and carry is a permit to carry, period. Provisions are made in CPL 400.00 for judicial review (actually all permit applications are approved by a judge prior to issue) and relief of disabilities (should you have been convicted of a more serious type of crime than jaywalking or speed in zone).

    I am seriously hoping this suit will invalidate the usually riduculous restrictions I have witnessed attached to a CPL 400.00 permit and follow State Law.

  • ||

    WOOT!!

    Now all the ACLU need to do to start get donations from me again is to not sell my mailing address to every left wing action group in the world.

  • ||

    Kachalsky’s denial was because he could not “demonstrate a need for self protection distinguishable from that of the general public.”

    This indicates to me the office should be issuing permits in large numbers, to anyone who brings in a current copy of a newspaper.

  • دردشة||

    thank u

  • Thomas Gagne||

    Mr. Doherty, sometimes it's necessary to remind people, and perhaps even justices, that our right to self-defense isn't "given" by the second amendment. The right to defend oneself is presupposed by the constitution, as are all our other rights.

    The right for a person to defend themselves, family, or even their students, should not turn on the interpretation of the second amendment. Individual rights are given by our creator, not the government.

    Neither is our right to free speech given by the first amendment.

    There are rights we all possess with or without the constitution or its amendments. The supreme court has been pretty good about "discovering" these rights on their own--Miranda and Roe might be good examples.

    This is a message I think that's worth repeating---over and over and over.

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