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.