Brady Campaign and Reality

[Al Norris]

Did you all feel it? There is a twitch in the Universe last Thursday. A bit of what we term, Reality, blinked!

The Brady Group has filed a lawsuit against the City of Nelson, Georgia for its recent enactment of a town ordinance that requires all "Heads of Households" to have a gun. They seem to have forgotten about Kennesaw, GA, which did the same thing, back in 1982... And how about Virgin, UT? Same law.

The case is Brady Center To Prevent Gun Violence v. City of Nelson, Georgia et al :: Justia Dockets & Filings, filed on May 16, 2013 in the Northern District of Georgia. Case # 2:2013cv00104.

The Docket has been sent to the Internet Archive. You will find the complaint listed as document #1.at the archive.

Other news articles (taken from THR) about this:

http://www.businessweek.com/ap/2013-...datory-gun-law
http://www.newsday.com/news/brady-ca...-law-1.5277698
http://news.yahoo.com/brady-campaign...125047642.html
http://www.cnn.com/2013/05/17/us/geo...uit/index.html
http://www.huffingtonpost.com/2013/0...n_3288455.html
http://www.miamiherald.com/2013/05/1...town-over.html
http://www.foxnews.com/politics/2013...gnextrefresh=1

Just off the top of my head, they do not have standing and the suit will be dismissed on those grounds.

[Evan Thomas]

This is a jaw-dropper.

Just off the top of mine, their reasoning, if one may call it that, is completely whacked. They've now decided that the Second Amendment isn't about the right to keep and bear arms, but about the right to defend one's home as one sees fit, including by not wanting to have those nasty dangerous guns present?? That's the most twisted and bizarre interpretation of Heller that I've seen to date.

And I'd have thought that an exception for people "who conscientiously oppose maintaining firearms as a result of beliefs..." would include people who believe that guns are a bad idea.

Why the dickens are they doing this?

[hermannr]

I wonder what the Brady bunch think of the Vermont constitution. (cut and paste, my highlight)

Article 9. [Citizens' rights and duties in the state; bearing arms; taxation]

That every member of society hath a right to be protected in the enjoyment of life, liberty, and property, and therefore is bound to contribute the member's proportion towards the expence of that protection, and yield personal service, when necessary, or an equivalent thereto, but no part of any person's property can be justly taken, or applied to public uses, without the person's own consent, or that of the Representative Body, nor can any person who is conscientiously scrupulous of bearing arms, be justly compelled thereto, if such person will pay such equivalent; nor are the people bound by any law but such as they have in like manner assented to, for their common good: and previous to any law being made to raise a tax, the purpose for which it is to be raised ought to appear evident to the Legislature to be of more service to community than the money would be if not collected.

Interestingly, the VT constitution states that if you have a problem bearing arms for your own protection, you will be required to pay extra for someone else to protect you.

[BarryLee]

Obviously this is just a publicity stunt on their part designed to highlight just how backward gun owners and the politicians who support them are. The legislation is obviously symbolic in nature and no one will ever be forced to own a gun they do not want.

[csmsss]

If Brady and HCI want to spend fistfuls of dollars chasing unicorns, well, I say we should encourage them. Think I'll place a few phone calls and write a few $.01 checks today.

[Spats McGee]

Without having read the pleadings, my first reactions are:
1) The Brady Campaign doesn't have standing to bring this. Some of their individual members might, but I can't see how the Brady Campaign itself would.
2) As much as I support the RKBA, I believe that the RKBA also encompasses a right to NOT keep and bear arms, either, much in the same way that the First Amendment right to free speech encompasses a right to not speak.

[Evan Thomas]

Spats, how do you arrive at #2? I'd have thought that in a very general sense, the law (and certainly the Constitution) assumes that it's OK not to do anything that's not compulsory -- but that doesn't prohibit passing laws that do make certain things compulsory . Wouldn't the Militia Acts of 1792 have been unconstitutional if the Second Amendment included the right not to keep and bear arms, insofar as they required men of militia age to own muskets/rifles and other necessary equipment?

And if the First Amendment encompasses a right not to speak, why would it have been necessary to spell out a right not to incriminate oneself in the Fifth?

[Spats McGee]

Vanya, let's start with the A1: In addition to the privilege against self-incrimination, which functions in the criminal sphere, the First Amendment protects a right not to speak in the civil arena.

We begin with the proposition that the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all. See Board of Education v. Barnette, 319 U.S. 624, 633-634, 63 S.Ct. 1178, 1182-1183, 87 L.Ed. 1628 (1943); id., at 645, 63 S.Ct., at 1188 (Murphy, J., concurring). A system which secures the right to proselytize religious, political, and ideological causes must also guarantee the concomitant right to decline to foster such concepts. The right to speak and the right to refrain from speaking are complementary components of the broader concept of “individual freedom of mind.” Id., at 637, 63 S.Ct., at 1185. This is illustrated by the recent case of Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974), where we held unconstitutional a Florida statute placing an affirmative duty upon newspapers to publish the replies of political candidates whom they had criticized.

Wooley v. Maynard, 430 U.S. 705, 714, 97 S. Ct. 1428, 1435, 51 L. Ed. 2d 752 (1977)

As an example: If the city in which I dwell passes an ordinance requiring that every parcel of real property put an election sign, "supporting one candidate for Mayor who has been duly placed upon the ballot," that law is invalid under the A1. If I refuse to put up such a sign, the Fifth Amendment right is not implicated by that refusal to act, but I have clearly violated the (unconstitutional) ordinance by refusing to express political speech, as required by the ordinance.

If the police later attempt to question me about such a refusal, I can then invoke the A5 for the right not to be compelled to incriminate myself. I'm going to have to shoot from the hip on the Milita Act, but here goes: As for the Milita Act, I'd have to go back and look at the history and see what, if any challenges were made to it. I ran a quick Westlaw search and I don't see any challenges to them. Laws are presumed constitutional unless and until someone successfully challenges them.

[Evan Thomas]

That's very informative. Thanks!

[2ndsojourn]

The Nelson GA ordinance exempts anyone who doesn't like guns.

http://www.huffingtonpost.com/2013/0...n_2995657.html


"The ordinance exempts convicted felons and those who suffer from certain physical or mental disabilities, as well as anyone who objects to gun ownership. The ordinance also doesn't include any penalty for those who don't comply."

Like stated above, let the Brady Bunch spend their money chasing their tail.

[2ndsojourn]

Ya know, I think I see a possible problem. The ordinance exempts the requirement for felons to own a gun.

So they now have the option? If they bought a gun via private sale, would they have any legal standing if they used this new law as a defense?

[Spats McGee]

Removing the municipal requirement to own a firearm does not remove the federal (or state) prohibition on doing so. No, it's not going to be a valid defense to felon in possession charges. See, e.g., The Supremacy Clause.

Standing to do what?

[2ndsojourn]

I was just wondering if he had some kind of a case that would complicate prosecution.

Back to our regularly scheduled program.

[Spats McGee]

Don't misunderstand me, 2ndsojourn. There's nothing wrong with your question, and I'm certain that there's a felon out there that will try to raise the ordinance as a defense to his FIP charge. However, I'm equally certain that his appointed public defender will point out the error of that defense.

[Mike Irwin]

"The suit contends the Second Amendment doesn't require anyone to have a gun, and government cannot require citizens to arm themselves."


Brady Campaign needs to acquiant itself with Title 10 of the US Code. Seems to me that, by establishing every male between 17 and 45 as members of the unorganized militia, that such ownership could easily be required.

[Tom Servo]

The original draft of the 2nd Amendment had this bit:

no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

As far as the Nelson ordinance, it really doesn't have any enforcement clause. It's pretty much a copycat of a similar ordinance enacted by Kennesaw in 1983. If it were to be enforced, there would be some real 4th Amendment concerns (which, oddly enough, aren't mentioned in the lawsuit).

That said, the Bradys are going to push the issue because the 11th Circuit isn't very gun-friendly, and because they had a win there a few years back.

[Al Norris]

GeorgiaCarry.Org, Inc., et al v. State of Georgia, was decided last July, 2012. The TFL Thread is at the link.

[Tom Servo]

Actually, I was referring to GCO vs. City of Atlanta, which was a 2008 case contesting a ban on carry in airports.

I'm not sure how influential they actually were on the outcome, but the Brady Campaign took credit:

The Court accepted arguments made by the Brady Center in an amicus brief it filed, represented by the law firm of Covington and Burling.

Given that this was shortly after Heller, it was something of a big deal among supporters of gun control.

[Alabama Shooter]

Stupid, empty, pointless law; now with stupid, empty, pointless litigation.

[Tom Servo]

OK, if I'm reading the complaint correctly, Mr. Kellett is a member of the Brady Campaign who lives in Nelson. This is what he's claiming for injury:

Because Mr. Kellett obeyed the law, the Firearm Ordinance forced Mr. Kellett against his will to purchase on April 23, 2013, a Remington model 1911, .45 caliber handgun for $646.59. It also forced him to purchase against his will .45 caliber ammunition for $32.09.

That's pretty spendy, and certainly not the $150 beater gun I'd have expected someone to buy when they're just trying to obey the law.

He's also claiming that his property values will be reduced.

Moreover, at least one study has established a direct correlation
between gun ownership in a locality and the number of gun deaths in that locality. Upon information and belief, increased gun deaths in a locality may also have a negative effect on property values in that locality. Mr. Kellett has suffered further economic harm because the Firearm Ordinance makes Nelson a less-desirable location, thereby causing property values, including the Kelletts’, to decrease.

The law provides an exemption for those who “conscientiously oppose maintaining firearms as a result of beliefs or religious doctrine,” and Mr. Kellett claims that it's a 1st Amendment violation to be forced to articulate a belief.

I can't wait to see them argue this before a judge.

[Al Norris]

I want to see the Brady Campaign survive the challenge to Standing. Assuming it isn't outright dismissed on those grounds, there is the MSJ on the grounds everyone has mentioned.

It will never get to the merits. But if they really want to spend the money.... So be it!

[Crazy88Fingers]

After the Supreme Court's Obamacare ruling is the government allowed to require the purchase of goods and services?

[scpapa]

^^^^^That's what I want to know. Is the penalty, if there is one, simply a "tax" ?

Rick

[Alabama Shooter]

That is actually a pretty good question and would go to what authority the municipality has to impose taxes I imagine.