SAF Rising as 2A Warrior, Challenging Restrictive Carry Laws

Empowered by its landmark 2010 Supreme Court victory in McDonald v. City of Chicago, which nullified the Windy City’s handgun ban and incorporated the Second Amendment to the states via the 14^th Amendment, the Second Amendment Foundation—a scrappy gun rights group based in Washington State—has become a legal powerhouse that is now targeting at least three states for their alleged arbitrary, prohibitive concealed carry laws.

This year alone, according to SAF founder and Executive Vice President Alan Gottlieb, SAF has filed “an average of two lawsuits each month.” With its most recent legal action—a federal lawsuit challenging Maryland’s arbitrary “good and substantial reason” requirement to obtain a concealed carry permit—the foundation has launched, usually in cooperation with other groups, 24 lawsuits so far in 2020. And, he acknowledged with a wink, “the year isn’t over.” December could see even more activity, he indicated.

It’s part of a strategy announced by Gottlieb some five years ago with the intention of “Winning Firearms Freedom, One Lawsuit at a Time.” The organization, founded more than 40 years ago, has been constantly active since the June 2010 McDonald ruling, and this year has seen their legal gears shift into overdrive.

Gottlieb estimates that SAF is responsible for about 80 percent of existing gun rights case law.

Depending upon the case, SAF is often joined by the California-based Firearms Policy Coalition, another group flexing its legal muscle. In some cases, SAF partners with the National Rifle Association. In the New Jersey and Maryland cases, SAF’s sister organization, the Citizens Committee for the Right to Keep and Bear Arms, is also participating.

State-level groups have also come aboard on occasion, including the Illinois State Rifle Association, New Jersey Second Amendment Society, San Diego County Gun Owners, Massachusetts Gun Owners Action League, Illinois Carry, Florida Carry, Commonwealth Second Amendment, Maryland Shall Issue, Inc., and Washington Arms Collectors, to name a few.

Cases haven’t always been about right-to-carry, either. SAF has been involved in legal actions to thwart gun bans in public housing, stopping local municipal governments from instituting regulations in defiance of state preemption laws, and in at least two cases, defending the First Amendment.

For example, SAF and NRA are challenging a City of Seattle “safe storage” requirement for firearms owners, in apparent violation of Washington State’s 35-year-old preemption law, which prohibits cities and counties from adopting their own gun control laws. The now-retired trial court judge tossed the suit on a technical standing issue, but last month, a three-judge panel on the State Court of Appeals unanimously reinstated the case and remanded it back for further action. A similar law in nearby Edmonds was struck down last year by the trial court.

The common denominator in New York City, New Jersey and Maryland are restrictive requirements to demonstrate something generically called “justifiable need” or “good and substantial reason.” SAF considers this nonsense because applicants are routinely denied, amounting on a ban of concealed carry by average citizens.

Consider this excerpt from the Maryland lawsuit:

“But the State of Maryland has criminalized the carrying of handguns by ordinary citizens, making it wholly unlawful for law-abiding citizens to exercise their fundamental right to bear arms in public for self-defense without first satisfying the State that they have a “good and substantial reason” to do so.

“Worse still, Maryland has made clear that a general desire to carry a handgun for the purpose of self-defense—“the central component” of the Second Amendment, District of Columbia v. Heller, 554 U.S. 570, 599 (2008)—is not a sufficiently good reason to exercise the right. Instead, according to Maryland, an ordinary citizen must provide documented evidence of concrete threats or recent assaults to obtain a permit from the state to carry a handgun in public. That restriction is akin to a state law concluding that the general desire to advocate for lawful political change is not a sufficiently “good and substantial reason” to exercise the right to free speech, and it cuts to the very core of the Second Amendment, no less than such a restriction would gut the First.”

As noted in the New Jersey lawsuit:

“But the State of New Jersey has criminalized the carry of handguns by subjecting those who unlawfully do so—even if by an otherwise law-abiding person who carries a handgun to exercise their fundamental right to bear arms in public for self-defense—to punishment for a crime of the second degree…a serious felony—placing such conduct among crimes for aggravated assault resulting in serious bodily injury, aggravated arson, robbery, and sexual assault.

“Adding further insult to constitutional injury, should an unlicensed person be convicted for exercising his rights by carrying a handgun in public, he would lose his Second Amendment rights under state and federal law.

“The State’s few exceptions to this broad criminal statute do not allow law-abiding citizens to carry a handgun outside their home…Indeed, the law sweeps so broadly that it bars anyone from having a handgun in their “possession” unless they can show that they fall into one of the limited Case.”

The New York City lawsuit explains:

“The Rules of the City of New York provide that, in order to obtain a Carry Business License or a Special Carry Business License, an applicant must “show ‘proper cause.’” The Rules define “proper cause” as follows:

“Proper cause” is determined by a review of all relevant information bearing on the claimed need of the applicant for the license. The following are examples of factors that will shall be considered in such a review.

• Exposure of the applicant by reason of employment or business necessity to extraordinary personal danger requiring authorization to carry a handgun.

Example: Employment in a position in which the applicant routinely engages in transactions involving substantial amounts of cash, jewelry or other valuables or negotiable items. In these instances, the applicant shall furnish documentary proof that her/his employment actually requires that s/he be authorized to carry a handgun, and that s/he routinely engages in such transactions.

• Exposure of the applicant to extraordinary personal danger, documented by proof of recurrent threats to life or safety requiring authorization to carry a handgun.

Example: Instances in which Police Department records demonstrate that the life and well-being of an individual is endangered, and that s/he should, therefore, be authorized to carry a handgun. The factors listed above are not all inclusive, and the License Division will consider any proof, including New York City Police Department records, which document the need for a handgun license. It should be noted, however, that the mere fact that an applicant has been the victim of a crime or resides in or is employed in a “high crime area,” does not establish “proper cause” for the issuance of a carry or special handgun license. [38 RCNY § 5-03]

“In addition, the Rules of the City of New York require a person seeking a Carry Business License or a Special Carry Business License to submit a “letter of necessity [that] explains the need for the license.” 38 RCNY § 5-05(b)(8)(i). Pertinently, “the letter of necessity shall contain . . . [a] detailed description of the applicant’s employment and an explanation of why the employment requires the carrying of a concealed handgun” and “[a] statement acknowledging that the handgun shall only be carried during the course of and strictly in connection with the applicant’s job, business or occupational requirements, as described herein.” Id. § 5-05(b)(8)(ii)(A)-(B). The letter of necessity requirements make no reference to the need for a defensive firearm outside the context of employment.”

As many gun rights activists have insisted over the years, nobody should be required to provide a “need” to exercise a fundamental right.

“It’s the bill of rights, not the bill of needs,” Gottlieb says in a SAF radio advertisement that frequently airs on Mark Walters’ Armed American Radio.

With Associate Justice Amy Coney Barrett now on the Supreme Court, there is at least a 5-4 conservative majority, and if Chief Justice John Roberts comes back on gun rights issues, that would make for possible 6-3 rulings, provided Republicans retain control of the Senate.

Fox News is reporting that some Capitol Hill Democrats admit their chances of pushing a “progressive” agenda—which will undoubtedly include extremist gun control measures—are diminished by the strong GOP showing on Election Day. Efforts by Far Left Democrats to push Joe Biden farther in their direction could be dashed if two special elections in Georgia in January leave Republicans with a slim Senate majority. Under that scenario, Majority Leader Mitch McConnell can stop legislation and Republicans on the Senate Judiciary might even prevent some cabinet nominees. They would certainly be able to prevent Biden and Vice President Kamala Harris—if they are declared the winners and take office—from stacking the Supreme Court.

With record voter turnout in several states, it does not appear gun owners sat this one out. The presumed election outcome does not appear to have had any impact on SAF’s legal activities, however. Indeed, SAF has been stepping up its game.

The foundation is involved in more than three dozen court cases right now, and the intent clearly is to get one or more of these to the Supreme Court. SAF had several cases seeking review earlier this year, none of which the high court accepted. That was a major disappointment for Gottlieb and his legal team. While the organization has no in-house attorneys, it works with several lawyers who have become specialists in gun rights issues.

Filling federal court vacancies with conservative judges and justices maybe Trump’s longest-lasting legacy and his most significant political victory. With some semblance of balance restored to the federal courts, there is a strong possibility that one or more of SAF’s pending cases could wind up before the high court.

One significant disadvantage for SAF is that the other side has lots of money because it typically comes from the taxpayers. In some cases, anti-gun organizations provide pro bono legal support to some lawsuit defendants, such as the City of Seattle. SAF nor any of its allies has enjoyed that luxury.

Over the past several months, with gun rights being a major shadow issue in the election cycle, donations—which are tax-deductible—to SAF have been improving, but every little bit helps. No doubt with a Biden administration pressing a gun control agenda and local governments doing likewise with support from the gun prohibition lobby, there will be even more support for SAF and its allies in their legal battles.

It will take more court victories to restore the Second Amendment to its rightful stature, Gottlieb acknowledges. That could take years, but SAF is in this for the long haul.

For information about the Second Amendment Foundation, visit www.saf.org