Comm2A Challenges Firearms Prohibition for Lawfully Admitted Aliens

Our MSJ has been filed with the court along supporting Affidavits.

The MSJ reads as follows:

Pursuant to Fed. R. Civ. P. 56, plaintiffs, Christopher M. Fletcher, Eoin M. Pryal, Second Amendment Foundation, Inc., and Commonwealth Second Amendment, Inc., hereby move for summary judgment in their favor on (i) their claim for declaratory judgment, and (ii) their claim for permanent injunctions, on the ground that the undisputed facts show the plaintiffs are entitled to judgment thereon as a matter of law.

The grounds for this Motion are set forth in the Plaintiffs’ Memorandum of Points and Authorities in Opposition to Defendant Jason A. Guida’s, Defendant Robert C. Haas’, and Defendant Mark K. Leahy’s Motions to Dismiss. This motion is also supported by (i) Plaintiffs Local Rule 56.1 Statement of Material Facts As To Which There Is No Genuine Issue To Be Tried, (ii) Plaintiff C2A’s Verification of Complaint, and (iii) Plaintiff SAF’s Verification of Complaint.
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EC1 said:
I guess the only argument one might make is from the Preamble where it begins; "We the people of the United States....." Doesn't really suggest application to people of other countries.
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there is a long series of supreme court decisions where "We the people" is interpreted to include citizens and anyone residing in the US and with strong ties to the political community and that 1, 2, 6 and 14th amendments AT LEAST apply to LPRs. Legal Permanent Residents have obviously strong ties as they pay taxes, they contribute to the welfare system, they can vote in certain local elections, they had to show their worth for the community in order to receive LPR status, they can apply for certain federal jobs, they must be registered for select service (age 18-26), they are part of the non-norganized militia of the states if they file a "declaration of intent" (age <45), they can join the US Armed Forces. If they can be called to pay the ultimate sacrifice for this Country, don't you think they deserve to have the means to defend themselves in their homes?

Three federal district courts already thought so, striking down State laws restricting the 2A of LPRs. We'll see what this in Boston thinks.

The Massachusetts DA is claiming that there is a not well specified "public interest" in keeping LPRs from having handguns in their homes, but provides no rationale for that. unless the xenophobic/nativist laws passed in 1922 in Massachusetts to prohibit Italians and Irish from being armed are that underlying rationale.....
 
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$30.00 donation inbound. Keep up the good work. They'll be more coming soon just small amounts as often as possiable.
 
SAF just sent an email release on the MSJ filing:
BELLEVUE, WA - The Second Amendment Foundation has filed a motion for summary judgment in its lawsuit challenging a statute in Massachusetts that denies legal resident aliens the licenses required to possess a handgun in the home for self-defense, or purchase any kind of firearm.

The case is known as Fletcher v. Haas. It was filed in April in U.S. District Court for the District of Massachusetts. Joining SAF in this lawsuit are Commonwealth Second Amendment, a Massachusetts grassroots organization, and two British citizens, Christopher M. Fletcher of Cambridge and Eoin M. Pryal of Northboro. They are represented by attorney Joseph M. Hickson III of Springfield.

The lawsuit alleges that have been specifically denied the ability to obtain a Firearms Identification Card or a License to Carry of any kind. Before moving to Massachusetts, Fletcher lived in California, where he had a Basic Firearms Safety certificate and Handgun Safety certificate, which allowed him to purchase and own firearms including handguns. Pryal, who is married to a U.S. citizen, had a shotgun certificate and international dealer's license while living in the United Kingdom.

"Lawful immigrants are entitled to the protection of our laws, including the protection of their right to self-defense," noted Miko Tempski, SAF Legal Affairs director. "Hopefully, this motion brings us one step closer to ending Massachusetts' hypocritical and discriminatory ban on handgun ownership for lawful immigrant residents."

The SAF motion was in response to a defendant's motion to dismiss the case.

"People in this country have rights," said SAF Executive Vice President Alan Gottlieb. "Among those rights is the right of self-defense, especially in one's own home. Legal resident aliens like Fletcher and Pryal are productive members of the community, yet they are being denied a basic right by the Commonwealth of Massachusetts. This prohibition simply cannot go unchallenged."
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Was that sent already?

The lawsuit alleges that xyz have been specifically denied the ability to obtain a Firearms Identification Card...
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Missing something (xyz)?
 
Based on general court watching, i'm guessing the decision will come out around the end of the year.

Sent from my PG06100 using Tapatalk
 
Motion hearing was today. Docket report says:

ELECTRONIC Clerk's Notes for proceedings held before Judge Douglas P. Woodlock: Motion Hearing held on 8/17/2011 re 23[RECAP] MOTION for Summary Judgment filed by Second Amendment Foundation, Inc., Commonwealth Second Amendment, Inc., Eoin M. Pryal, Christopher M. Fletcher, 14[RECAP] MOTION to Dismiss Complaint filed by Robert C. Haas, 16[RECAP] MOTION to Dismiss filed by Mark K. Leahy, 12[RECAP] MOTION to Dismiss filed by Jason A. Guida. Oral arguments heard; Court takes said motions UNDER ADVISEMENT. (Court Reporter: Brenda Hancock at 617-439-3214)(Attorneys present: Hickson, III for the pltffs; Doyle, Goldberg, and Salinger for the defts) (Lovett, Jarrett) (Entered: 08/17/2011)

Anyone who was there care to speculate on how the hearing went?
 
SAF just sent out a press release that an preliminary injunction was issued in the similar case against Omaha, Nebraska. Hopefully we'll hear some good news about Fletcher sometime soon.
 
jar said:
SAF just sent out a press release that an preliminary injunction was issued in the similar case against Omaha, Nebraska. Hopefully we'll hear some good news about Fletcher sometime soon.
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It happens when it happens... The justice system grinds away very, very slowly.
 
The also filed for a preliminary injunction with their complaint. We decided to file the complaint, wait for an answer and then move for summary judgement.
 
That ended up being the more entertaining option it appears too. [grin] Otherwise we may not have found out the official position of the state of MA is that immigrants don't get 4th amendment protection.
 
terraformer said:
It happens when it happens... The justice system grinds away very, very slowly.
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Oh, I'm well aware of that. I'm also well aware of my 1A right to whine about it. [wink]

Knuckle Dragger said:
The also filed for a preliminary injunction with their complaint. We decided to file the complaint, wait for an answer and then move for summary judgement.
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That's one of the procedural things where my procedural knowledge is sorely lacking. Can you speak to the tradeoffs involved (either generally or specifically).
 
jar said:
Oh, I'm well aware of that. I'm also well aware of my 1A right to whine about it. [wink]



That's one of the procedural things where my procedural knowledge is sorely lacking. Can you speak to the tradeoffs involved (either generally or specifically).
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The TRO/PI means they will rule very quickly, but only if the case law is very clear, the situation has some urgency and the party has a likelihood of prevailing (see clear case law). If you remember in ezel, the 7th circuit in orals talked about how money can not make whole the deprivation of a right. You seek equitable relief which means the court will stop the infringing party from continuing the harm. If the case has urgency, then you file for a TRO/PI, if it doesn't, you file for summary judgement on the declaratory judgement. It's all about urgency. But urgency is relative and if you are in a court hostile to your issue, your PI may be denied delaying even further the relief. Why would a court already hostile to your issue reverse themselves after claiming you didn't have a high likelihood of prevailing? If you look at our plaintiffs, you will note we had no one claiming urgency. Had we, we may have filed for a TRO/PI. Clearly we believe the case law is in our favor, but no urgency and that was fine for the plaintiffs in this case. It won't always be fine.

Sometimes it is better to take the longer route. Had we filed for the PI, the case may have taken a different tack. You just never know.

NB:
TRO temporary restraining order
PI Preliminary injunction
 
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Somewhat tangentially related to this case, the ATF released a letter recently stating that they believe the current requirement that legal aliens prove 90 continuous days of residence to purchase handguns isn't legal under the GCA. They're in the process of changing the regulations and amending the 4473 to make the alien requirement the same as the current citizen requirement of proof of residence.

http://www.atf.gov/press/releases/2011/12/122211-atf-open-letter-state-of-residence.pdf

ETA: I'm guessing they didn't do this out of the kindness of their hearts, but to avoid a lawsuit over it that they expected to lose.
 
Great catch jar - rep inbound.

The most interesting point of the ATF letter is the quotation of the justice department conclusion that the issue is "different standard", not "requiring of 90 days residence". Given Obama, it's perhaps even surprising they just didn't declare that nobody is a resident until they have been in a state for 90 days :).

The Department of Justice (the Department) has recently concluded that, as a matter of law, applying a more stringent State residency requirement for aliens legally present in the U.S. than for U.S. citizens is incompatible with the language of the GCA
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jar said:
Somewhat tangentially related to this case, the ATF released a letter recently stating that they believe the current requirement that legal aliens prove 90 continuous days of residence to purchase handguns isn't legal under the GCA. They're in the process of changing the regulations and amending the 4473 to make the alien requirement the same as the current citizen requirement of proof of residence.

http://www.atf.gov/press/releases/2011/12/122211-atf-open-letter-state-of-residence.pdf

ETA: I'm guessing they didn't do this out of the kindness of their hearts, but to avoid a lawsuit over it that they expected to lose.
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Keep in mind that they didn't say it was unconstitutional, only that the GCA68 didn't specifically authorize it. There is a disturbing trend of ruling against illegal aliens right now in the courts. Hence, there is a series of issues at play here and they are trending in various directions.
 
There is a disturbing trend of ruling against illegal aliens right now in the courts. Hence, there is a series of issues at play here and they are trending in various directions.
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I am not particularly concerned about rulings against illegal aliens, as long as said rulings hinge on the fact that the person is "illegal".

What scares me is rulings against legal aliens. One thing that was done properly in Fletcher was using plaintiffs who are legal permanent resident aliens, so that any denial of their rights cannot hinge on a "lack of legal status" or "failure to have their papers in order".

Keep in mind that they didn't say it was unconstitutional, only that the GCA68 didn't specifically authorize it.
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My guess is they figured they were better off voluntarily giving up a bit of territory than having the issue before the courts and risking a bigger loss - like a ruling establishing that "residence" cannot be a requirement to exercise of a constitutional right. The later actually would be an interesting case - if the 2nd is protected by the constitution, and subject to at least intermediate scrutiny, what can be the legal basis for denying that right to a person who is legally in the country but has not established residence? If residence can be a requirement for "Heller rights", could it not also establish that the 4th amendment does not apply to legal visitors who have not established residency?
 
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jar said:
Somewhat tangentially related to this case, the ATF released a letter recently stating that they believe the current requirement that legal aliens prove 90 continuous days of residence to purchase handguns isn't legal under the GCA. They're in the process of changing the regulations and amending the 4473 to make the alien requirement the same as the current citizen requirement of proof of residence.

http://www.atf.gov/press/releases/2011/12/122211-atf-open-letter-state-of-residence.pdf

ETA: I'm guessing they didn't do this out of the kindness of their hearts, but to avoid a lawsuit over it that they expected to lose.
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The drift I'm getting from things like this, and the thing with the NFA CLEO signoff going away, is something along the lines of "we'd better change this now before the courts make us change it and we have to accept something worse". EG- they fear the courts' legal remedies could be greater than whatever they are conceding by trying to forestall the cases via mootness.

-Mike
 
Rob Boudrie said:
I am not particularly concerned about rulings against illegal aliens, as long as said rulings hinge on the fact that the person is "illegal".

What scares me is rulings against legal aliens. One thing that was done properly in Fletcher was using plaintiffs who are legal permanent resident aliens, so that any denial of their rights cannot hinge on a "lack of legal status" or "failure to have their papers in order".



My guess is they figured they were better off voluntarily giving up a bit of territory than having the issue before the courts and risking a bigger loss - like a ruling establishing that "residence" cannot be a requirement to exercise of a constitutional right. The later actually would be an interesting case - if the 2nd is protected by the constitution, and subject to at least intermediate scrutiny, what can be the legal basis for denying that right to a person who is legally in the country but has not established residence? If residence can be a requirement for "Heller rights", could it not also establish that the 4th amendment does not apply to legal visitors who have not established residency?
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Illegal aliens usually start out as legal aliens. They "vacation" here or they are students and they overstay their visa. How about H1Bs? They do not fall under the rubric of "the people" as proffered by these hack decisions barring illegals. Keep in mind that these decisions are not denying the right to illegals because they are illegal, they are denying the right to illegals because they aren't part of the collective "we, the people". As a result, the line in the sand has some very legal, very desirable and very much protected individuals on the wrong side of the line.

These courts are not saying those violating their visa lose the right, they are saying those who haven't been around as long don't have access to the right. That difference could cause a lot of problems in the future.
 
Keep in mind that these decisions are not denying the right to illegals because they are illegal, they are denying the right to illegals because they aren't part of the collective "we, the people".
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Actually, they are denying the rights for the same reason a dog licks his private parts.
 

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