Litigation – May 22, 2015 update

The US Supreme Court ruled 9-0 this week in Henderson v. United States that convicted felons may be able to transfer their guns to someone else rather than surrendering them to authorities, siding with a former US Border Patrol agent from Florida convicted on marijuana charges, and overturning the 11th US Circuit Court of Appeals in Atlanta. The court said a federal law prohibiting felons from possessing firearms did not prevent ownership of guns from being transferred to another person, as long as the judge overseeing the case ensures that the felon cannot retain control over the use of the weapons.

The Second, Fifth and Seventh Circuits, as well as the Montana Supreme Court, all hold that individuals convicted of felonies still may have some ownership rights of firearms, just not possessory rights. In opposition, the Third, Sixth, Eighth and Eleventh Circuits have maintained that Section 922(g) of the US Code strips all firearm ownership rights away from felons — even the ability to arrange for their transfer or sale to another.

This is really a property rights case, not a gun rights case; hence the 9-0 vote.

Senior US District Court Judge Frederick Scullin, Jr. of the US District Court for the District of Columbia has issued a preliminary injunction against the provision in Washington, D.C.’s CCW law which requires concealed carry license applicants to show a “good reason” to exercise a constitutionally-protected right. Our understanding is that while the preliminary injunction is in place, the D.C. law is a “shall issue” law.

The case Palmer v. D.C. is now dead, but the lawsuit against the new D.C. law’s “may issue” sections, Wrenn v. D.C., is alive. Wrenn et al v. District of Columbia et al, was a follow-on case to Palmer v. District of Columbia and was filed after the D.C. City Council adopted their new carry regulations. Plaintiff’s attorney Alan Gura expects it to go to the SCOTUS. There are other states that have similar “good reason” requirements in their permit statutes, which apparently are also now in jeopardy.

Blinn College (near Houston, TX) student Nicole Sanders, assisted by the Foundation for Individual Rights in Education, filed a First Amendment lawsuit against the public institution this week after being told by an administrator in February that she would need “special permission” to display a gun rights sign and collect signatures on campus for her student group, Young Americans for Liberty, Sanders was forming. The lawsuit challenges Blinn’s policy of restricting speech to a tiny “Free Speech Area” (that comprises less than 0.007% of campus), as well as the process that led the college to take over a month to approve a palm-sized card Sanders wanted to hand out to students explaining their Fourth and Fifth Amendment rights. In addition to challenging Blinn’s speech codes, the lawsuit also alleges that Sanders’ ceramics professor, Doug Peck, threatened her with retaliation if she sought to take action against the school.


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