The 9th Circuit has decided that because body armor once moved in interstate commerce, the federal government can regulate possession of it. This theory of the commerce clause is, in my opinion, quite properly referred to as “the herpes theory” of the commerce clause. It is also this theory under which felon-in-possession of firearms is regulated at the federal level, and also by which national concealed carry is based. This issue actually came up a few years ago in the 10th circuit, and that circuit came to the same decision as the 9th. A circuit split would make the Supreme Court more likely to hear the case, but perhaps they will want a chance to refine their commerce clause juris purdence further. Now would be the time, given that The Court is only going to get more progressive in makeup as the Obama Administration drags on.
Category: Law
Home Rule and Concealed Carry
Go here to see something you won’t see very often: folks pissed at NRA for not compromising on a bill, namely, NRA wants a full concealed carry bill, with preemption, and state activists are pushing for a weaker bill subject to home rule. I would encourage each side to understand where the other is coming from. There’s no evil intent here, it’s an honest disagreement about how to move the ball forward. That inevitable in any issue.
From NRA’s point of view, I can see why they don’t want a weaker bill. Not all home rule charters are created equal. See here for instance. Illinois has one of the more liberal home rule provisions in the country. Nebraska’s, by contrast, is considerably more limited. Someone getting caught carrying violating a local carry ordinance in Omaha, for instance, has more legal options under Nebraska law than someone caught in Peoria does under Illinois law. Ohio has a fairly strong home rule provision, but Ohio home rule does not permit home rule entities to restrict something which is explicitly authorized by state law. The preemption law in Ohio was meant to address cities who banned semi-automatic firearms, which because not explicitly allowed under state law, could be restricted by Ohio home rule entities under the law.
Illinois home rule charter essentially allows “exercise any power and perform any function pertaining to its government and affairs.†which is remarkably broad. There are limits though. Home rule entities may not define felonies, and may not incur certain debts. But Illinois home rule entities enjoy considerably more leeway than they do in other states. That’s one thing for activists there to consider. Many people are not tuned in to the activist community, and will not plugged in to which communities have which restrictions. When those people get in trouble, they will look to groups like NRA, SAF, etc to get them out of trouble. And it should be considered that NRA needs to serve all its members, including the ones who could potentially get in trouble by a hazardous concealed carry law.
But I do understand, from the point of view of people living in Illinois, the desire to get something passed. It’s unlikely that concealed carry with full preemption is going to get the 3/5th majority needed to override home rule. It could be possible to get preemption through the courts, but the courts are always a risky venture, and there may be concerns in regards to complicating the court cases that are currently making their way in the 7th Circuit. We’re still a long way from having bearing of arms having any kind of constitutional protection.
I am sympathetic to the argument that passing something is better than nothing, but I’m also concerned with making sure something is the right thing. Pennsylvania originally got concealed carry law in 1988 by initially exempting Philadelphia from the requirement to issue licenses. They still had to recognize licenses from outside the city, but did not have to issue them to residents. In 1996, the state forced the City of Philadelphia to begin issuing licenses on a shall-issue basis. Philadelphia, as it always had, claimed home rule, but Pennsylvania’s home rule provision is weak, and it did not prevail with this argument. A lot of states have passed weaker laws, then strengthened them. It’s not a bad idea, per se. But understand that there’s risks associated with doing so. Just because the legislature makes a mess with a weaker law, doesn’t mean they will have any special interest in cleaning up the mess, especially when it’s gun owners who are the ones who have to live in the filth.
Analysis of Olofson Appeal Ruling
The 7th Circuit Court of Appeals handed down a decision denying an appeal in the case of US vs. Olofson. The Olofson appeal was well argued, but ultimately did not prevail. Let’s look at the issues, in summary:
First issues was in regards to jury instructions. Olofson contends that the jury was given no instructions on the definition of the word “automatically,” arguing that it is distinct from his firearm, which is described as malfunctioning. Olofson’s attorneys tried to get the courts to adopt dicta in other cases, which suggested a different definition. The court goes into a lengthy analysis of what the case law requires, and argues that the case law works against the jury being required to be given an instruction on the definition of automatic. The Appeals Court then goes into an originalist analysis of the meaning of “automatic” as applied to firearms at the time the NFA was adopted. What’s interesting is they argue:
That interpretation clearly forecloses the argument that a weapon is not a machinegun merely because it stopped firing due to a malfunction; indeed, the reason a weapon ceased firing is not a matter with which §5845(b) is concerned. Under that interpretation, however, a defendant can still argue that the reason a gun fired more than one round (with a single pull of the trigger without manual reloading) was due to a malfunction—i.e., the additional rounds fired resulted from a mishap rather than from a regular self-acting mechanism.
What’s important for future cases is this still leaves a defense on the table for someone who legitimately has a firearm which is malfunctioning. As I mentioned in regards to the trial transcript, what sealed Olofson’s fate was his prior knowledge of the firearm’s capabiity before transferring it. That doesn’t make the law right, but that is what it says. I think Olofson’s attorneys were smart to make the argument they did, and if it had prevailed, could have gotten him a new trial with better representation, and carved out a far wider exception for malfunctioning firearms.
The second argument presented in the appeal was that the evidence was insufficient in order to obtain a conviction. In the appeal, Olofson’s attorneys argued that:
Neither the lay testimony, nor the expert testimony, taken in the most favorable light for the government, established that Olofson’s AR-15 was a machinegun according to the Staples definition. As noted above, Kiernicki, the person to whom Olofson loaned the firearm, testified simply that, at the single pull of the trigger, the AR-15 fired three rounds and then jammed.
Relying on the Staples definition of “automatically” that was argued previously, they are attempt to argue the definition of “automatically” adopted in Staples essentially means the firearm malfunctioned rather than fired as a machine gun. The Appeals Court deals with that issue by arguing that the legal standard is:
When a defendant challenges the sufficiency of the evidence, we view the evidence in the light most favorable to the government and will reverse the conviction only if no rational jury could have found the defendant guilty beyond a reasonable doubt. United States v. Castaldi
The Appeals Court then goes on to argue that the jury was presented with evidence showing that the firearm in question fired more than one round with a single function of the trigger, and that Olofson was aware of these characteristics, and being aware of both of these, “evidence was adequate to permit a reasonable jury to find beyond a reasonable doubt that Olofson transferred a ‘machinegun’ as defined by § 5845(b).”
The third prong of the appeal was that 17 USC 922 (o) and 924 (a)(2) are unconstitutionally vauge. The apply the Lim standard:
A statute is unconstitutionally vague if it either “1) does not provide a person of ordinary intelligence a reasonable opportunity to know what is prohibited, or 2) fails to provide explicit standards to prevent arbitrary and discriminatory enforcement by those enforcing the statute.
I would argue that a statute that can potentially classify a malfunctioning firearm as a machine gun, which § 5845(b) could be read to do, fails on both counts, when you consider that a constitutionally protected right is at play. Olofson’s appeal does not make a Second Amendment claim, but this ruling would leave the door open to a future case which could claim that because ownership of a semi-automatic firearm is constitutionally protected, that the statute, rather than being vauge, is unconstitutional, because it creates a legal hazard for owning semi-automatic firearms which malfunction.
The fourth prong centers around Len Savage’s exclusion from the courtroom during the testimony of the Government’s expert witness. This gets into the rather mundane Federal Rules of Evidence. Here the Appeals Court rules that the burden was on Olofon (really his attorney at trial) to make the case that the rule allowing Savage to remain in the courtroom, and that the argument wasn’t raised at trial:
Second, Olofson stated that he “would like to have Mr. Savage present to hear†the government expert’s testimony on malfunctions so that he could “rebut or add information†if such testimony was incomplete or incorrect. While no precise incantation is required, we doubt whether those statements advanced the argument that Savage’s presence was essential under Rule 615(3). Olofson did not tell the district court (as he tells us on appeal) that Savage’s presence was of critical import to his highlytechnical defense that the AR-15 malfunctioned. Even assuming that he did make the argument, Olofson did not carry his burden of demonstrating essentiality. The defendant stated that Savage should be allowed to hear the government expert’s testimony so that Savage could “rebut or add information†to any inaccurate testimony about malfunctions, but Olofson did not tell the district court why Savage’s presence was necessary to achieve that end.
The Appeals Court seems to be saying here that the argument wasn’t raised at trial, so it seems to be a bit of a “you snooze, you lose” type situation, but I won’t pretend to be an expert on Federal Rules of Evidence.
The final prong is probably the area where it seemed the government did the most damage to Olofon’s case, which is not allowing for discovery of certain documents, and for not disclosing ATF’s testing procedures. The court rules:
Regarding the first non-disclosed item—the ATF’s internal procedures for test-firing AR-15 rifles—Olofson says he wanted that information because “[f]ailure to follow those procedures by changing the type of ammunition in the second test could demonstrate that the tests had been manipulated to arrive at a reversal of the results of the first test.†We do not see how that information could have exculpated Olofson; section 5845(b) does not require compliance with ATF test-fire procedures in order for a weapon to qualify as a machinegun, nor must the weapon fire any particular grade of ammunition or in the prohibited fashion during the first test-fire.
The Court is basically ruling that the law does not require ATF to document and standardize its testing procedures, and that it is free to do what it did, in retesting the gun until it got the desired result. The court is correct that the law does not require this, but should it? Given the hypertechnical nature of gun design, it probably should have some easily met standard. But that’s something that Congress needs to address. Finally the Appeals Court rules on the ATF documents that were not turned over:
We subsequently ordered that document to be unsealed. That evidence is a 1983 letter from the ATF to the manufacturer of the AR-15 in which the ATF advised the company that the installation of certain M-16 parts in AR-15 receivers may permit the weapon to fire automatically even though an automatic sear is not present. We agree with the district court that the document is not exculpatory: it has no bearing on Olofson’s knowledge of whether his AR-15 was a machinegun.
The conclusion you can’t help but notice that the courts, at least in the 7th Circuit, are reading the law absolutely literally, and are not willing to carve out broad exceptions to the National Firearms Act definition of a machine gun. The Appeals Court hinted that there are still legal protections for folks who do legitimately have malfunctioning firearms, but then in other parts of this decision refute the notion, and argue the literal definition. What it boils down to is that if you have a firearm that fires more than one round per single pull of the trigger, and you know it does this, you need to take it to a gunsmith and get it fixed pronto, because by the strict legal definition, you are in possession of a machine gun.
Still unexplored is what i think is an interesting notion, which is whether the Second Amendment of the United States makes § 5845(b) unconstitutionally broad, since it can apply to a semi-automatic firearm that merely malfunctions. Olofson’s attorneys did not raise that issue in his appeal, so that is still on the table. I think it was wise that they didn’t raise it, since we do not yet have any precedent that there’s a constitutional right to own any kind of firearm other than a handgun. Perhaps someday that issue can be raised, but as it is now, the National Firearms Act doesn’t have much to say about malfunctioning firearms, so fix them quick and quiet if it ever happens to you.
Interesting Second Amendment Case
This case Eugene Volokh highlights challenges part of California’s Welfare and Instutions Code, which bars people who have been involuntarily admitted for mental treatment from possessing firearms for a period of 5 years. I believe this section would also apply a federal ban as well. The plaintiff in the case went through the normal channels for relief from this type of firearms disability, and was denied.
The question is whether or not a “preponderance of evidence” standard is sufficient to deny Second Amendment rights, or whether a stronger standard, such as “clear and convincing evidence” need to be required for a civil commitment. The court reasons:
When evaluating whether the private interest affected by the civil proceeding requires a standard of proof higher than the preponderance of the evidence standard, the courts consider “the nature of the private interest threatened and the permanency of the threatened loss.” (Assuming arguendo the Second Amendment applies to the states, under Heller an individual’s right to possess certain firearms in the home for defensive purposes is of constitutional stature. However, under section 8103, the deprivation of this interest is temporary, lasting for five years. Further, the loss concerns the loss of property, and does not involve deprivation of physical liberty or severance of familial ties. The deprivation is not akin to the types of cases -— such as termination of parental rights, civil commitment, or deportation —- where a clear and convincing evidence standard is typically imposed. Moreover, although the loss of the right to possess firearms can impact an individual’s ability to defend him- or herself, the deprivation does not leave the individual exposed to danger without recourse to other defensive measures, such as installing home security devices and summoning the police.
The court goes on to argue that balancing the consequences of a mentally unstable person having a gun, versus the temporary loss of liberty favor using preponderance of the evidence standard.
What I don’t quite understand is why, in a case like this, the “clear and convincing” standard isn’t sufficient? I would imagine even under that standard this guy is pretty clearly and convincingly mentally disturbed. I think the court also errs in assuming that substitutes are as readily effective. As someone in the comments point out, “Those alternatives were just as available to the residents of Washington DC, but the supreme court rejected such reasoning when presented by the DC government.”
I can understand why the judge felt the need to reach this conclusion, because this person is a poor plaintiff to be making Second Amendment claims. Who wants to be responsible for allowing a mentally disturbed individual access to firearms? But I think the standard is too low, and relegates the Second Amendment to second class status among our panoply of rights.
I’d say I hope the case is appealed, but this plaintiff is awful. It would be ideal to appeal a better case, but we might not get ideal.
More Analysis on the National Park Ruling
Dave Hardy is far more qualified than I am to comment on the case, being an attorney, and having worked as an attorney for Interior for a number of years. He has this to say:
Probably because this was being raced thru in the last days of the Bush Admin., that’s all that Interior did in the way of NEPA. Just applied a categorical. They didn’t put together the usual environmental assessment.
So they got nailed. You can see it coming. NEPA requires analysis of environmental impact, both good and bad. Well, if the rule does good things — allows people to defend themselves against criminals and predatory wildlife — that’s a good impact on the human environment. Which means the categorical exemption is inapplicable.
It was a rushed rule, perhaps prepared by agency personnel who didn’t care, or might even enjoy it if it got struck down. There might have been a chance at winning on standing to sue (and I note from the opinion the government didn’t argue that!).
I guess we’ll just have to take care of this legislatively. Now where is that federal lands bill?
More on National Park Injunction
I’m reading through the decision. Preliminary injunctions like this usually aren’t issued unless there’s a high probability of the plaintiff prevailing on the merits of the case, and the plaintiff also has to show a likelihood of irreparable harm. At least that’s my understanding. The heart of the decision in this case says:
Currently pending before the Court is Plaintiffs’ Motion for a Preliminary Injunction to enjoin implementation of the Final Rule. Because the Court finds that the Final Rule is the product of Defendants’ astoundingly flawed process, the Court holds that Plaintiffs are highly likely to prevail on the merits of their NEPA claims. The Court also holds that Plaintiffs have 4 met their burden to show a likelihood of irreparable harm, the absence of significant harm to other interested persons or entities, and that the public interest weighs in favor of preliminary injunctive relief. Having balanced all of these considerations and found that they weigh in favor of issuing a preliminary injunction, the Court shall GRANT Plaintiffs’ Motion for a Preliminary Injunction.
The decision goes on many pages discussing why the injunction is warranted, and I don’t honestly have suffiicient expertise to offer much. The injunction essentially views the DOI’s application of a categorical exclusion of this rule as arbitrary and capricious:
This Court’s function is to “ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious.†City of Olmsted Falls, Ohio v. Fed. Aviation Admin., 292 F.3d 261, 269 (D.C. Cir. 2002). The scope of this review includes an inquiry into whether the agency has made its decision based on “a consideration of the relevant facts†and whether it has “failed to consider an important aspect†of the issues associated with its decision. Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43. Defendants’ failure to apply the correct standard by which to consider environmental impacts–by examining what the Final Rule authorized as opposed to the foreseeable consequences that would occur as a result of the Final Rule–is sufficient by itself to render the DOI’s decision to invoke a categorical exclusion arbitrary and capricious.
I definitely get the feeling in reading this decision that the judge in question doesn’t like, at all, the idea of guns being allowed in national parks, and sees it as inherently an environemntal concern, which I do not. But that’s not to say the judge is wrong as a matter of law.
Plaintiffs emphasize that the DOI failed to distinguish its previous position that gun restrictions were a “basic mechanism . . . to protect the natural and cultural resources of the parks [and wildlife refuges] and to protect visitors and property within the parks.†Pls.’ Mot. at 26-27 (quoting 48 Fed. Reg. at 30252). Plaintiffs argue that the DOI’s “only mention of the prior rules was a description of how they operated,†Pls.’ Mot. at 26, and that this brief mention was insufficient to justify a reversal of its previous position. Id. at 25.
The D.C. Circuit has repeatedly explained that an agency’s unexplained “180 degree turn away from [precedent is] arbitrary and capricious,†and that an agency’s decision “to reverse its position in the face of a precedent it has not persuasively distinguished is quintessentially arbitrary and capricious.†La. Pub. Serv. Comm’n v. Fed. Energy Regulatory Comm’n, 184 F.3d 892, 897 (D.C. Cir. 1999) (citing Motor Vehicle Mfrs. Ass’n, 463 U.S. at 57) (“[a]n agency’s view of what is in the public interest may change, either with or without a change in circumstances. But an agency changing its course must supply a reasoned analysisâ€). “‘[T]he core concern underlying the prohibition of arbitrary and capricious agency action’ is that agency ‘ad hocery’ is impermissible.â€
Ramaprakash v. Fed. Aviation Admin. & Nat’l Transp. Safety Bd., 346 F.3d 1121, 1130 (D.C. Cir. 2003) (quoting Pacific N.W. Newspaper Guild, Local 82 v. Nat’l Labor Relations Bd., 877 F.2d 998, 1003 (D.C. Cir. 1989)). See also ANR Pipeline Co. v. Fed. Energy Regulatory Comm’n, 71 F.3d 897, 901 (D.C. Cir. 1995) (“Where an agency departs from established precedent without a reasoned explanation, its decision will be vacated as arbitrary and capricious.â€).
The good thing in all this is that the court granted NRA’s Motion to Interveine, meaning it will be NRA lawyers filing the appeal rather than Obama Administration lawyers. I will leave the arguments as to why this injunction was improperly issued to people better trained in these matters than I.
Saul Cornell Responds to Hardy
As Dave Hardy mentioned over on his blog, Saul Cornell published a law review in response to Dave’s earlier review article on the lecture notes of St. George Tucker. I’m not sure what’s more amusing, the degree Cornell is willing to go to ignore or downplay Tucker’s blatant reference to self-defense in regard to the Second Amendment, or the fact that we now have liberal scholars lecturing conservatives on not being good originalists!
The Barsch Case in California
I’ve seen a few bloggers link to this piece on a collector in California who had his guns seized from him and sold off by the police. What raised my interest was this:
“The city is pleased that the Ninth Circuit affirmed the entry of summary judgment in favor of its police officers,” Hom said.
Emphasis mine. Something seems wrong here. If the U.S. District Court threw the case out on a summary judgment, something would have to be legally wrong with his case, right? This would mean there are no issues of fact that need to be decided by trial. Sure enough, if you pull the actual decision from the case at U.S. District Court from 2007:
On this record, the Court concludes that plaintiff has not raised a triable issue of fact to defeat summary judgment on his due process claim. Plaintiff has not submitted any evidence suggesting that he did not have notice or an opportunity to be heard on his claim that he was the rightful owner of the seized weapons prior to their sale/destruction. Cf. Jordan v. City of Lake Oswego, 734 F.2d 1374, 1376Â (9th Cir. 1984) (“That he chose not to avail himself of this opportunity does not detract from our conclusion that the procedures utilized prior to his termination were sufficient to accord with the due process requirements of the federal Constitution.).
Looking for more information on this case, I found this wasn’t the first case Mr. Barsch has been a party to. In 1997, Barsch raised a Second Amendment claim in order to contest the seizure and destruction of a pistol in connection with a domestic violence issue, Ironically with the same defendant, Michael O’Toole. In that case, the appeals court said:
With respect to Barsch’s contention that his Second Amendment right to bear arms was violated, the district court did not err by dismissing this claim for lack of standing. See Hickman v. Block, 81 F.3d 98, 101 (9th Cir.), cert. denied, 117 S.Ct. 276 (1996) (“[T]he Second Amendment is a right held by the states, and does not protect the possession of a weapon by a private citizen.”).
The district court also did not err by dismissing Barsch’s due process claims alleging that he was improperly denied the return of the handgun. Barsch was provided the opportunity to appear in state court to argue against the confiscation of the handgun. See United States v. Yochum (In re Yochum), 89 F.3d 661, 672 (9th Cir.1996).
Today, Heller would negate that argument, but this was in 1997. This is mere speculation on my part, but this whole thing screams “kook” to me. We know in the first case from 1997 he represented himself, because it mentions “Edward A. Barsch appeals pro se.” I’d bet money that he also represented himself pro se in this matter, made faulty and wrong legal arguments, and got a summary judgment against him.
If the authorities come into your house and take guns, the next call should be to a lawyer who’s experienced in practicing Second Amendment law if you ever want to see your guns again. I am not a fan of the asset forfeiture laws in this country, and there are many examples of people being truly railroaded by the system, but I don’t think this guy is among them. Some people are perfectly willing to give the authorities the rope with which they will hang them.
Standing Case Heard at the Supreme Court
I wonder if this case might have some bearing on gun rights. Dave Hardy is reporting on it:
Summers v. Earth Island Institute. A quick read suggests it’s no change in direction. (1) Plaintiff must challenge a specific decision, not a general policy or manner of decisionmaking; (2) Plaintiff (or its members) must show some risk of concrete risk of injury — “I visit Forests and this sometimes happens on Forests and so I might see it” is not enough.
It’s a 5-4, and a major factor in the split is that the dissent argues that a large organization should be able to argue that, given the size of its membership and the activities of its members, it’s likely in general that some of them will encounter results of the policy being litigated, even if the group’s attorneys cannot come up with specific member names and affidavits. (In this case, the challenge was to Forest Service sales of timber on small parcels, but thousands of them, and one of the plaintiff organizations had 700,000 members).
Isn’t this the basis of the Brady Campaign’s lawsuit against the Department of the Interior?  Can we get this dismissed on standing in light of this ruling? How is what Dave Hardy described above with “I visit Forests and this sometimes happens on Forests and so I might see it” different than this:
Suzanne Verge, a member of the Brady Campaign […] regularly uses, visits, and enjoy national park areas, including Yosemite National Park […]. Defendants failure to comply with the Organic Act, NEPA and the APA directly harms Ms. Verge by reducing the safety and enjoyment of national park areas she visits and by increasing the risk of wildlife poaching.
Perhaps they get around this by singling out a specific member and claiming direct harm. I’ll be honest, Sanding seems like more a hodgepodge for judges to get rid of unpleasant matters before them than a readily understandable and coherent doctrine limiting the judicial power.
Brady Case Against NPS Concealed Carry Rule
Introduction
The Brady Campaign would appear to be going through discovery in trying to build it’s case against the rule change that allows people with state licenses to carry a firearm in a National Park in states which allow for such a thing. Their press release here and blog post here give some idea of what their public line of reasoning is, but you can find the actual complaint here.
Organic Act Claims
They make many claims in the pleadings, but one of them is that these regulations are actually required in order for the NPS to fulfill its goal under the National Park Service Organic Act. One would have to wonder, then, how the National Park System was misregulated from the years 1916, when the Organic Act was passed, until 1960, when the National Park Service first promulgated regulations on carrying of firearms within the National Park System. Either way, the Brady Claim under the Organic Act is that by allowing concealed firearms, they put the people in danger, and threatens other’s enjoyment of the parks.
NEPA Claims
The second, and probably more interesting claim is that the Department of the Interior violated the National Environmental Policy Act, which requires federal agencies to perform an Environmental Impact Statement on any federal action which “may significantly impact the qualify of human environment.” The NPS claimed in the rule which eventually appeared in the Federal Register on December 10th, that:
Consistent with this commitment, we have analyzed the final rule under NEPA and concluded that (i) the action is subject to a categorical exclusion under 43 CFR 46.210 since the final regulation is in the nature of a legal change to existing regulations, and (ii) no “extraordinary circumstances” exist which would prevent the proposed action from being classified as categorically excluded.
That regulation that covers that claimed exclusion is here. NEPA requires all federal agencies to promulgate regulations to implement their compliance with NEPA, which DOI has done. The exclusion claimed under the Department of Interior regulations are among the category of “Categorical Exclusions” which are allowed by the agency regulations promulgated in 40 CFR 1508.4.
Categorical exclusion means a category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency in implementation of these regulations (§1507.3) and for which, therefore, neither an environmental assessment nor an environmental impact statement is required.
Brady’s claim under NEPA is essentially that concealed weapons represent a threat to human health, and thus an Environmental Impact Statement must be prepared.
APA Claims
The third leg of the Brady Campaigns case asserts that the Department of Interior violated the Administrative Procedure Act (APA) which is the federal law that outlines the rulemaking process. The Brady assertion under this act is that their new rule was “arbitrary, capricious, an abuse of discretion […]” Largely because the DOI “acted hastily and in utter disregard of the procedural mandates of the APA […] Indeed, in their rush to judgement, defendants failed to adequately consider and address most of the approximately 125,000 comments that opposed this rule change, including the Brady Campaign’s comments, in violation of the APA.” I’m pretty sure the vast majority of the public comments were in favor of this rule change, and that most of those 125,000 comments were pro-gun.
Conclusion
In their Prayer for Relief, the Brady Campaign is not only asking for this rule to be overturned, but also for a permanent injunction to be placed on the Department of Interior from ever promulgating any regulation allowing for possession of loaded and concealed firearms in National Parks. I think the Brady case is pretty weak, but it will be up to the Solicitor, now under Obama, to defend this regulation in court, so it’s hard to say what will happen. It’s amazing that their hysteria and desperation manages to come through clearly in their pleadings, and I also think it’s interesting they mislead the court that there were huge numbers of public comments against this rule change. Let us hope this regulation stands.