Gun Owners Respond to Motion to Dismiss Gun Rights Suit

Gun Owners Respond to Motion to Dismiss Gun Rights Suit

Charleston, W.Va. —  In a series of filings last week in the U.S. District Court for the Southern District of West Virginia, the West Virginia Citizens Defense League, a Kanawha County gun dealer, and several individual WVCDL members responded to a series of motions to dismiss their lawsuit challenging local gun control ordinances in the cities of Charleston, South Charleston, and Dunbar.

In their filings, WVCDL and the other plaintiffs argued that they have proper standing to challenge  city  ordinances in  Charleston, South Charleston,  and Dunbar  that prohibit carrying firearms on city-owned property  and Charleston  city  ordinances requiring  the  registration ofhandguns, imposing a 3-day waiting period on handgun sales, rationing handgun sales, and imposing additional restrictions beyond state and federal law on who may lawfully purchase handguns.

WVCDL and the other plaintiffs argued that each ordinance is invalid as a matter of state law because  the Legislature did not affirmatively authorize any of them were and, alternatively, that each ordinance violates an individual’s right to keep and bear arms under the Second Amendment to the United States Constitution and the West Virginia Constitution’s Right to Keep and Bear Arms Amendment.

In light of a recent ruling by the U.S. Court of Appeals for the Fourth Circuit, which includes West Virginia, that found  that past cases dealing with an individual’s freedom of speech, press, assembly, and religion under the First Amendment  are highly persuasive in examining an individual’s right to keep and bear arms under the Second Amendment, WVCDL and the other plaintiffs argued that Charleston’s handgun sales restrictions “are simply indefensible.”   To illustrate the blatant unconstitutionality of Charleston handgun sales restrictions, they argued:

If, instead of purchasing a handgun, the Charleston Defendants chose to impose a 72-hour waiting period, one-time-per-month (with discretionary authority invested in the chief of police to grant an individual a special waiver for up to three other occasions within a particular month) limitation, and compulsory registration with the city police prior to publishing an editorial, column, or letter to the editor in the  Charleston Gazette or  Charleston Daily Mail critical of Defendants’ policies; purchasing or selling certain books; attending or conducting more political meetings; or attending or conducting religious services, Plaintiffs are certain that this Honorable Court would not tolerate them for one minute.

These examples are such clear violations of every person’s freedom of speech, press, assembly, and religion under the First Amendment that, to Plaintiffs’ knowledge, they have never been attempted and thus have not been the subject of any onpoint legal precedent.

Yet, when the subject is changed to the acquisition of a constitutionally-protected arm for self-defense as recognized by  [District of Columbia v.] Heller and  McDonald  [v. City of Chicago], the Charleston Defendants want this Honorable Court to believe that they may constitutionally exercise such extraordinary prior restraints on an individual’s right to keep (not to mention bear) arms.

In support of their state law claims, WVCDL and the other plaintiffs argued that the City of Charleston has no more legal authority under state law to create its own local gun control laws than it has, for example, to adopt an ordinance requiring a person to have a prescription in order to purchase cold medicines containing pseudoephedrine or other precursors of methamphetamine in order to combat the allegedly growing public health and safety problem of meth labs.

In response to arguments made in a recent  amicus curiae filing by the Brady Center to Prevent Gun Violence in support of the Charleston ordinances, WVCDL questioned the value of any additional background checks the Charleston police department may be conducting on handgun purchasers.

If the Charleston Defendants are in possession of information about individuals who are prohibited by Federal and State law from purchasing handguns, why is that information not already being provided to the Federal Bureau of Investigation for inclusion in the National Instant Criminal Background Check System so that those individuals might be prevented from unlawfully purchasing firearms from dealers located outside the City of Charleston?

Unfortunately, Plaintiffs believe and intend to demonstrate that Charleston’s 72-hour waiting period was designed and operates as an intentional hindrance to lawful handgun purchases that is simply not permitted by the Second Amendment.

WVCDL and the other plaintiffs also argued that the City of Charleston has disregarded less-restrictive alternatives to achieve its alleged desired intent of preventing crime: As one example of less-restrictive measures the Charleston Defendants have disregarded, many other jurisdictions that have more extensive regulations on handgun sales than prescribed by federal law exempt individuals who are licensed under state law to carry concealed handguns from various handgun sales laws.

Citing testimony by West Virginia State Police Deputy Superintendent Steve Tucker at a 2008 legislative interim committee hearing in which he testified,  “concealed weapon permit holders are law-abiding citizens that we generally don’t have as defendants in criminal cases,” WVCDL and the other plaintiffs argued that the City of Charleston could have avoided most of this lawsuit  by following the lead of many states who exempt concealed handgun license holders from various state and local handgun sales laws but instead chose “to paint with a very broad

brush and treat even those individuals who have concealed handgun licenses as criminals-inwaiting who deserve to be restrained in their exercise of their right to keep and bear arms.”

Finally,  WVCDL took issue with the public commentary  of  Charleston Mayor Danny Jones shortly after the pending lawsuit was filed, in which Jones noted the lawsuit was filed in the Charleston federal courthouse where firearms are prohibited.

“All we want is what they have. We want to be able to control our own property,” Jones said. “I don't know how far these people want to go.”

WVCDL responded:

If all that Mayor Jones and the other Charleston Defendants wanted was the same arrangement as the courthouse in which this Honorable Court sits, there would be little argument from Plaintiffs.  As Plaintiffs have previously stated, WVCDL has advocated legislation, based in part upon [a Colorado law  permitting concealed handgun permit holders to carry a concealed handgun inside any state or local government building except those that have certain, airport-style security measures in place], that would authorize any state or local government agency—including Defendants—to restrict or prohibit the possession or carrying of weapons in a “secure restricted access area” of any public building where specified security measures are in place.

Unfortunately, a reasonable, narrowly-tailored regulation that not only prohibits the otherwise lawful carrying of firearms but actually backs it with meaningful security measures to provide real protection to the alleged protected persons and effectively interdict unlawfully-carried weapons is not what Charleston has or desires.

The Charleston Defendants instead seek universal citizen disarmament everywhere they think they can possibly do so, comfortable in the knowledge that they have no legal duty to protect anyone even though  not a single criminal or madman is going to be deterred by the prospect of 30 days in jail and a $500 fine on top of decades in prison for multiple felony convictions for whatever evil crimes might someday be committed—which, in the absence of the types of security measures that protect this Honorable Court, Plaintiffs can only hope and pray never befalls their fellow West Virginians who visit and work in or on the numerous, unsecure, public properties covered by Charleston’s overbroad carry ban—in Charleston’s archipelago of criminal protection zones.

All major filings in WVCDL’s ongoing litigation are available on WVCDL’s web site at:
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