1. Art and Diseño

WHIT.E-COLLAR DEFENSE ROUNDTABLE
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EXPERT WITNESS R....... y,_~
Long Beach attorney Chucl( Michel has built
a successful career by challenging fireanns regulationsand winning. by Bill Blum
photo by Vern Evans
D. "Chuck" Michel won big against what he
calls the "gun grabbers" last February when
a three-judge panel of the Ninth U.s. Circuit
Court of Appeals reversed a trial court ruling
in one of the most significant Second
Amendment cases of his career. Not only did
the 2- 1 majority invalidate San Diego County's restrictive policy for obtaining a concealed-carry handgun permit, it went on to
declare that the personal right to keep and
bear arms extends outside the home.
Michel, a Long Beach- based eon tract attorney for the
California Rifle and Pistol Association (CRPA)-the statewide affiliate of the National Rifle Association- has been the
lead plaintiffs attorney in Peruta v. San Diego (742 F.3d 1144
(9th Cir. 2014)) since April 2010. In 2011 former Solicitor
General Paul D. Clement filed an amicus brief on behalf of
the NRA, and he later argued the case for the appellants. "We
got everything we asked for from the court, n says Michel,
who drafted the pleadings.
In a 69-page opinion, Judge Diarmuid O'Scannlain, one
of the circuits most conservative members, crafted a meticulous analysis of the Second Amendment and pre-Civil War
gun-ownership rights. He concluded that the county's interpretation of "good cause" to obtain a concealed-carry permit
-<locumenting circumstances showing that the applicant
was uniquely in harm's way-infringed the constitutional
right to "bear Arms." O'Scannlain wrote, "[Tjhe right is, and
has always been, oriented to the end of self-defense. Any contrary interpretation of the right, whether propounded in
Bill Blum Is a retired Los Angeles administrative law judge. noveUst. and
a contributing writer for CaUfomia Lawyer.
COMMENTS? letters_callawyerQlldallyJournaLcom
1791 or just last week, is error." (Peruta, 742 F.3d at 1155
(emphasis by the court).)
One other federal circuit had explicitly issued such a
holding before-Moore v. Madigan (702 F.3d 933 (7th Cir.
2012))-but not in so detailed and definitive an opinion.
From Michel's perspective, the broad sweep of
O'Scannlain's prose also vindicated the NRAS steady and
deliberate approach to litigation. In the wake of the U.5.
Supreme Courts landmark decision recognizing an indi"idual's right to own firearms (District of Columbia v. Heller, 554
U.S. 570 (2008)), ~n-rights groups 'had rushed to clarify the
scope of permissible regulation. The NRA's contentious
rival-the Second Amendment Foundation in Washington
state-had brought a similar challenge to concealed-carry
policy in California's Yolo County. Three weeks after the
Ninth Circuits decision in Peruta, the same panel invalidated
Yolo's policy. But it did so in an unpublished three-page
decision that cited Peruta as controlling precedent. (Richards
v. Prieto, 560 Fed. Appx. 681 (9th Cir. 2014).)
When the sheriff of San Diego County declined to petition for rehearing of Peruta, others attempted to step into the
breach. But in November the Ninth Circuit denied intervenor status to Attorney General Kamala D. Harris, the Brady
Campaign to Prevent Gun Violence, and the California
Police Chiefs and Peace Officers' Associations. (Peruta v.
County of San Diego, 771 F.3d 570 (9th Cir. 2014).) Still,
Judge Sidney R. Thomas's strong dissent in Peruta gave
Michel cause for concern.
.
In Decem.ber, two days after the Montana jUrist began a
seven-year term as Chief Judge, Michels worries were borne
out: The Ninth Circuit called for briefing-<lue Christmas
Eve-to determine whetherI Peruta should be reheard en
banco If review is granted, Thomas will lead a tribunal that
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includes ten other judges chosen at random.
No one knows, of course, how the en
banc process will conclude. "The Circuit
consists of roughly two-thirds Democratic
appointees and one-third Republican,"
says Michel. "But judges don't always vote
along political lines. And our position is
very persuasive."
Should the respondents lose an en banc
ruling, Michel promises he won't back
down. He'll appeal Peruta all the way to the
u.s. Supreme Court-very likely joined by
libertarians and other advocates of individual gun rights.
shot you're going to take."
Des~ribing himself as a
"fair" student, Michel says
he was fortunate to be
admitted to Rutgers University, where he graduated
with a major in psychology
hile most lawyers display diplomas
Hon, Diarmuid cann/ain
and communications. At
and personal photos on their walls,
school, he says, "I became
Chuck Michel's spacious, second-floor office facing a little more focused, but I still didn't know what I wanted to
Long Beach's picturesque marina is decked with fire- do when I grew up."
arms collectibles and gun-related artwork. Hanging behind
Certain, however, that he wanted to escape the cold
his big wooden desk is a rare, single-shot Liberator pistol, Northeast winters, he headed for Southern California, where
manufactured during World War II for Resistance fighters; a he took a management-training position marketing Select
chopped-up Glock handgun; antique Texas Ranger badges; and OnTY, early forerunners of cable television. Over the
and vintage posters of Tom Mix, the legendary gunslinging next five years Michel did everything from stocking TV
cowboy of Hollywood's silent era.
decoder boxes to installing the devices himself, eventually
In any other law firm, the motif might seem over the top. becoming a regional supervisor. To make extra money, he
But at Michel & Associates, home to more than a dozen tended bar. But he felt he was just drifting. "If you reach
attorneys, the decor couldn't be more appropriate: Though thirty and you're still wearing a name tag," he says, "then
its general practice ranges from criminal defense to environ- you're not as successful as I wanted to be." .
mental, business, and labor and employment cases, the firm's
Michel applied for work at local law enforcement agenspecialty is firearms litigation, accounting for a quarter to cies but was turned down because of poor eyesight. And
one-third of its billings.
though the FBI called him back for a second round of interMichel, 56, is a self-described "true believer" in what he views, the bureau's application and screening process seemed
terms the "civil rights self-defense movement." He even named interminably slow. So Michel enrolled in law school at
his Labrador retriever "Heston" to honor Charlton Heston, the Loyola Marymount in Los Angeles. He interned for both the
actor and former standard-bearer of the NRA.
Los Angeles federal public defender's office and the district
Tall and powerfully built, Michel's unassuming affect attorney's office, then graduated in 1989 and clerked for u.s.
belies his encyclopedic knowledge of gun-control history DistrictJudge Wuliam Rea-an experience'that enabled him
and firearms litigation. He is the author of the authoritative "to see the practice of law from the bench." It also landed
California Gun Laws and has helped shape-as either attor- him a position in civil litigation at O'Melveny & Myers.
ney of record or an amicus--many of the biggest gun-rights
Like most first-year associates, Michel found himself
cases of the past two decades.
analyzing documents, putting in long hours on discovery
Michel traces his fondness for firearms to his days grow- motions, and praying to be ~igned to take a deposition on
ing up in the northern New Jersey township of Bridgewater. his own. His most vivid recollections aren't the cases he was
"My father had been in the Army," he says. "He was a hunter assigned but rather discussions with his colleagues in the
and a volunteer safety-and-skills instructor for the NRA, and lunchroom-specifically, about O'Melveny's pro bono work
he taught me and my two brothers how to shoot." -Back then, supporting the City of Los Angeles's gun-control regulations.
Michel recalls, their heavily wooded subdivision bordered a "Of those who voiced an opinion on the subject, we were
YMCA campground. "You could literally walk off the rear nearly evenly divided," he says.
porch and hunt for squirrels or rabbits."
Michel's own feelings about the ineffectiveness of gun
Michel's father, who held a marketing job at Johnson & control deepened after he volunteered for the firm's trial
Johnson, was also a competitive marksman. "He had a lot of advocacy program, trying misdemeanors in city attorneys'
low-caliber, high-accuracy rifles and different shotguns at the offices in Los Angeles County. "Nothing gets your blood
house that he used for birds, deer, and small game," Michel pumping and your enthusiasm for the law going than a jury
says. "You need a different type of gun for every kind of trial at that stage of your career," he says. "There's a big dif-
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"Not only am I constantly battling the gun-ban lobby, but people on
my own side are throwing darts at the work I do."
-ATIORNEY CHUCK MICHEL
ference between being a litigator and being a trial attorney."
Along with learning how to win convictions, Michel
came to sympathize with some defendants who faced gunpossession charges that he felt didn't warrant prosecution.
"The average Joe Six-Pack with a gun collection doesn't
know what's legal and what isn't," he says. "I'd see defendants
coming through court who had been stopped by police coming back from the firing range and hadn't locked their gun
in the right kind of hard case, or they couldn't get a concealed-carry permit. I began to think that the gun-control
laws were being misapplied."
hile still an O'Melveny associate, Michel wrote NRA
general counsel Robert]. Dowlut to offer his services.
Dowlut suggested he approach the·.organization's
statewide affiliate, the CRPA, which operates as a
separate legal entity.
Michel took that advice when he left O'Melveny to go
solo in 1993. "I soon realized there was a niche group of
people out there who owned guns and needed legal help,"
he says. "I started going out to gun clubs and fundraising dinners, giving talks and advice. My practice took off." His primary focus: criminal defense.
It was a volatile year for gun issues. That summer
a former client of Pettit &:
Martin wielding assault weapUCLA law professor
ons fatally shot eight people
Winkler: "For a PI'OI)()nl!,":Q
in the firm's San Francisco
gun rights like ChucJc
CalIfornia remains a
office tower, reigniting the
flcult legal enYlronlrnenl~
national debate. Attorneys.
around California responded
by forming the Legal Community Against Violence
(now the Law Center to Prevent Gun Violence),
which began a push for state and local gun-control
laws. When West Hollywood proposed a ban on the sale of
cheap handguns known as "Saturday night specials," the law
center offered its support.
The ordinance passed in 1996, and members of the CRPA
decided it was time to fight back in court. But litigation was
a new tack for the organization, which historically promoted
gun-use education and shooting contests. Teaming with the
NRAS national office, the CRPA retained Michel to rue suit
against West Hollywood.
In a preview of his legal strategy for later cases, Michel
attacked the ban on preemption principles, arguing that only
the state had the authority to regulate gun sales. After losing
at trial he appealed, only to have the state Court of Appeal
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publish a unanimous decision upholding the ordinance.
(California Rifle & Pistol Ass'n v. City o/West Hollywood, 66
Cal. App. 4th 1302 (1998).)
Despite the stinging setback, Michel still believes his strategy was sound. At the time, most courts and legal scholars
viewed the Second Amendment-"A well regulated Militia,
being necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed"-as an
anachronism pertaining to service in a state militia. Indeed, the
same year Michel filed suit against West Hollywood, the Ninth
Circuit held that the constitutional right to bear arms protected
only the "collective right" related to militia service and that
individuals lack standing to enforce rights under the Second
Amendment. (Hickman v. Block, 81 E3d 98 (9th Cir. 1996).)
"For a proponent of gun rights like Chuck Michel, California was and remains a very difficult legal environment," says
UCLA law school professor Adam Wmkler, who writes extensively on the Second Amendment and has appeared on panels
with Michel at several legal conferences. [In CalifOrnia,] the
people who make the law, the people who interpret it, and
those who enforce it are largely
pro-gun control. "
Such was the climate in 1989
when the Legislature passed the
Roberti-Roos Assault Weapons
Control Act in the wake of an earlier mass shooting-this one at a
Stockton elementary school. (See
Cal. Penal Code §§ 305~30515.)
The act, which banned a broad
range of semi-automatic weapons,
was followed by the now-expired
federal assault-weapons ban
enacted by Congress in 1994.
In 1999 the Legislature passed a series of amendments to
the state assault-weapons law, tightening restrictions on the
manufacture and sale of semi-automatics in California.
Three years later, the Ninth Circuit upheld those amendments and reaffirmed the collective-right interpretation of
the Second Amendment that it had articulated in Hickman.
(Silveira v. Lockyer, 312 E3d 1052 (9th Cir. 2002).)
In spite-or perhaps because-of the West Hollywood
outcome, Michel's niche practice continued to grow, along
with his reputation as a talented litigator. "Chuck and I had
a very good professional relationship," recalls Sayre Weaver,
who defended West Hollywood in the Saturday-night-special
case. (She is now of counsel to Richards, Watson &: Gershon.)
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"The NRA may pick up the big names to represent it in litigation,
but big names don't necessarily do a lot in the courtroom."
-ALAN GOTTLIEB. FOUNDER OF THE SECOND AMENDMENT FOUNDATION
"He was above board and didn't pull punches. We were both
young and determined and litigated fiercely. "
Over time, however, the political winds shifted and
Michel's trial-court skills paid off. In 2005 he was part of the
legal team that successfully defended gun distributors and
manufacturers-including Glock, Browning, and Coltagainst a trio of judicially coordinated lawsuits brought by
several California cities and counties. The plaintiffs had
alleged that illegal design and marketing of handguns
amounted to an unfair business practice by enabling criminals to acquire the weapons and cause a public nuisance. (In
re Firearms Cases, 126 Cal. App. 4th 959 (2005).)
Then in 2008 Michel gained a measure of vindication for
his West Hollywood defeat, using state-preemption theories to
Center to Prevent Gun Violence, "but .people on my own
side are throwing darts at the work I do. So I've got to bob
and weave against both opposing counsel and friends who
think their cases are better than mine."
As Michel explains the divergent views and strategies
within the firearms rights movement, he makes clear that the
NRA is just one voice among a cluster of other groups.
The association's Civil Rights Defense Fund-a taxexempt organization based in Fairfax, Virginia-is primarily
a funding source for gun-rights litigation. Requests for support come from lawyers working independently on cases
around the country, as well as from the litigation unit of the
NRAS nonprofit Institute for Legislative Action (ILA), also
based in Fairfax, with offices in Washington, D.C., and Sacramento. The institute actively manages litigation
that the NRA chooses to join.
"We get involved both reactively in
cases that have already been filed, and
offensively on our own initiative," says
Chris Conte, the ILAS litigation manager. In Peruta,
the California Rifle and Pistol Association joined the
litigation as a named party after Michel asked Conte
for his backing. "We talked about the issues and the
prospects for success in the case," he says, "and
decided to join Chuck."
As both Conte and the ILAS website emphasize,
"the goal in every case is to strategically advance
the rights of gun owners, while not creating bad
precedent."
But the NRA's carefulness to avoid defeat has
sparked criticism from rival gun-rights and libertarian
organizations. Foremost among them are the Cato
invalidate a San Francisco ballot initiative that had barred resi- Institute of Washington, D.C., and the Second Amendment
dents from possessing handguns within city limits; the mea- . Foundation (SAF), which have charged the NRA with being
sure also criminalized the sale, transfer, and/or distribution of too cautious in defending the Second Amendment in highfirearms and ammunition. His victory was sweetened by the stakes litigation.
award of $300,000 in attorneys fees for the NRA. (Fiscal v. City
A nonprofit established in 1974, the SAF has more than
and County of San Francisco, 158 Cal. App. 4th 895 (2008).)
650,000 dues-paying members and contributors who finance
gun-rights cases nationally. Its founder and executive vice
Ot surprisingly, those courtroom victories drew mount- president, conservative businessman Alan Gottlieb, rose to 'I~
ing criticism of the NRA from gun-control advocates prominence in gun circles by hosting a series of academic
who saw Michel as overzealous. But the victories also conferences beginning in the mid 1970s. His goal was to forge ,
attracted friendly fire from fellow crusaders in the gun- a consensus that the Second Amendment protects the gun ~
rights movement. "Not only am I constantly battling the rights of individuals-and not only when they participate in ~
gun-ban lobby," Michel says, referring to organizations such a state militia.
as the Law Center to Prevent Gun Violence and the Brady
"We're on the same side of the most basic issues," Gottlieb ~
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says of the SAF and the NRA, noting that the two groups often support each other's lawsuits with
amicus briefs. "But quite honestly,
I don't know that the NRA really
has a litigation strategy. They seem
to be playing catch-up to us."
Michel scoffs at such criticism,
countering that the SAF and others are sometimes overly impulsive in deciding
when and where to bring·lawsuits. He faults the
SAF for initiating cases in hostile jurisdictions
where they have little chance to win and, in his
view, are likely to cause harm. Among other
purported miscues, Michel lists SAF's recent
failures-in New York, New Jersey, and Maryland-to overturn state gun-permit laws similar
to those stricken in Peruta. (Kachalshy v. County
o{Westchester, 701 F.3rd 81 (2nd Cir. 2012);
Drahe v. Filho, 724 F.3rd 426 (3rd Cir. 2013);
Woollard v. Gallagher, 712 Brd 865 (4th Cir. 2013).)
"They think it's better to throw the Hail Mary pass into the
end zone," Michel says of SAF's approach. "Even if [they)
don't connect," he adds, mixing his metaphors, they believe
"everybody will realize that they need to get out the pitchforks
and torches. I just don't see the villagers rising up like that."
n Heller, however, the Hail Mary pass did connect. Filed in
2003, the landmark Second Amendment suit challenged
the constitutionality of a District of Columbia ordinance
restricting the ownership of handguns. The case was the
brainchild of Robert A. Levy, then a senior fellow at the Cato
Institute; Clark Neily, an attorney at the Institute for Justice
who represented the plaintiffs privately; and a relatively
unknown young lawyer named Alan Gura. A former California deputy Attorney General, Gura had opened a small private practice in Alexandria, Virginia. Although he had never
before filed a Second Amendment complaint, Gura was
selected to lead the litigation.
The decision to file the Heller case sent shock waves
through the gun-rights community. The NRA actively
opposed filing the case even though it had campaigned for
individual gun-ownership rights since the late 1970s, according to UCLA's Winkler, who chronicles the friction between
the Heller lawyers and the NRA in Gun Fight: The Battle Over
the Right to Bear Arms in America (W W Norton, 2013).
The organization was convinced that, given the great
weight of contrary legal precedent dating back to the U.S.
Supreme Court's decision in United States v. Miller (307 U.S.
174 (1939», contesting D.C's ban on Second Amendment
grounds would backfire on appeal. According to Winkler,
in August 2002 professor Nelson Lund of George Mason
Law School, whose chair was endowed by me NRA, tried to
dissuade Levy from proceeding with Heller. Levy, a successful entrepreneur who had studied under Lund, balked and
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decided to fund the litigation out of his own pocket. To~y,
Levy chairs Cato's board of directors and is a major player
nationally in libertarian politics.
The NRA's case for restraint at the time, Michel maintains,
was grounded in realpolitik. "Back then, you had Uustices)
Rehnquist and O'Connor still on the Court," he says. "Both
justices were very doubtful votes on the Second Amendment." In terms of tactics and timing, he contends, "Heller
was a bad choice."
But Levy and Gura thought otherwise, and they began the
search for plaintiffs for a Second Amendment challenge.
They recruited six, including D.C. resident Shelly Parker,
who claimed she'd been threatened by drug dealers, and
licensed "special police" officer Dick Heller, who was permitted to carry a handgun while on duty patrolling federal
buildings but could not keep one in his home.
As the NRA anticipated, the district court dismissed the
suit in 2005, upholding the constitutionality of the D.C.
ordinance. But two years later a panel of the U.S. Court of
Appeals for the D.C. Circuit reversed. The court found 2-1
that the ban violated the Second Amendment right to keep
arms in the home. (Parher v. District of Columbia, 478 F.3d
370 (D.C. Cir. 2007).) The decision joined an earlier Fifth
Circuit ruling in a Texas case that had been regarded largely
as an outlier. (United States v. Emerson, 270 F.3d 203 (5th Cir.
2001).) With the influential D.C. Circuit now also in conflict
with the Ninth, Supreme Court review seemed inevitable.
By 2007, when the Court finally granted certiorari, Michel
says the legal landscape had shifted dramatically. "While
Heller was pending [in the lower courts), Rehnquist died and
O'Connor retired, and they were replaced by Roberts and
Alito," he says. "That's when you picked up the five votes
you needed to win. There was a lot of luck involved."
Luck aside, Michel continues, "everybody in the g~n­
rights movement threw their weight behind [Heller}." His
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"[SAF's litigators] think it's better to throw the
Hail Mary pass into the end zone."
-CHUCK MICHEL
former law firm, O'Melveny & Myers, was also in the mix,
representing the District of Columbia.
Michel drafted an amicus brief on behalf of the International Law Enforcement Educators and Trainers Association,
other police associations, and 29 elected California district
attorneys in counties from Alpine to Santa Barbara to San
Bernardino. His was one of nearly 70 amici submissions in
the case.
Focusing largely on the hot-button issue of whether gun
control actually reduces criminal violence, Michel's brief
relied on criminology research and statistics. "In the hands
of law-abiding citizens," he argued, "guns provide very substantial public safety benefits," deterring the rate of both
home-invasion burglaries and assaults. The point of gun
control, he wrote, should be keeping firearms out of the
hands of criminals, not limiting the ability of citizens to
defend themselves.
In the final section of his brief, Michel added a concise
legal summary that anticipated the 5-4 majority opinion in
Heller that Justice Antonin Scalia would write. Not only do
handgun bans violate the original intent of the Second
. Amendment, he argued, but so do any laws that completely
prohibit ownership of firearms. As such, they need not be
evaluated under either strict or intermediate judicial scrutiny, the traditional standards for testing the validity of legislation that affects constitutional rights.
Apparently, Scalia agreed. "[Tlhe enshrinement of constitutional rights necessarily takes certain policy choices off
the table," the justice concluded. "These include the absolute prohibition of handguns held and used for self-defense
in the home." (District of Columbia v. Heller, 554 U.S. 570,
636 (2008).)
The historical underpinnings of Scalia's opinion are still
passionately debated. Jack N. Rakove, a professor of history
and political science at Stanford University, calls the opinion an
example of shoddy and superficial "law-office history." Rakove,
who submitted an amicus brief signed by Carl T. Bogus of the
Roger Williams University School of Law in Rhode Island,
argues that debates by the Framers clearly show the Second
Amendment was ratified to protect gun ownership only in
the service of state militias, which the anti-Federalists feared
might be outlawed by the nation's new central government.
Other scholars, such as UCLAS Winkler, take a middle
view, contending that Scalia botched the issue of original
intent but nevertheless calling his decision warranted.
"N~rly every state has a provision in its constitution protecting gun ownership," Winkler notes. "Americans have
always had the right to keep and bear arms as a matter of
22 FEBRUARY 2015
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state law." In his view, Heller may not be in accord with an
originalist jurisprudential theory, but it illustrates evolving
standards under a "living Constitution."
Correct or not, Heller is the law. Still, the majority opinion
did less to resolve the scope of individual gun rights than
many expected. ~lia cautioned, as Michel points out, that
nothing in the court's ruling "should be taken to cast doubt
on long-standing prohibitions on the possession of firearms
by felons and the mentally ill or laws forbidding the carrying
of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." In footnote 26, Scalia
noted, such regulatory measures are "presumptively lawful."
(District of Columbia v. Heller, 554 U.S. at 627 n. 26 (2008).)
"Post-Heller," Michel says, "the race was on to clarify
exactly what Scalia meant."
he very day Heller was decided, the SAF and Gura filed
a new case on behalf of a 74-year-old retired maintenance worker from Chicago named Otis McDonald. The
plaintiff was prohibited from buying and registering a
handgun for self-protection by a city ordinance precluding
registration of any handguns bought after 1982. The SAF
provided funding for the suit and also joined the litigation as
a named plaintiff, along with the Illinois State Rifle Association, the NRA's state affiliate. (McDonald v. City of Chicago ,
No. 08-CV-3645 (N.D. Ill. filed June 26,2008).) The legal
question presented was whether the Second Amendment
right of individual ownership extends to the states, either by
way of the Fourteenth Amendment's due process clause or
its privileges or immunities clause.
At the same time, the NRA filed challenges under its own
name to the Chicago ordinance and to three similar ones
passed in nearby suburbs. When the McDonald and NRA
suits reached the Seventh Circuit Court of Appeals, they
were consolidated-and then dismissed in 2009 on the basis
of prior Supreme Court precedents that declined to apply the
Second Amendment to the states. (See NRA v. City of Chicago, 567 E3d 856 (7th Cir. 2009).)
Both the SAF and NRA petitioned for certiorari. But only
the SAF explicitly asked the Supreme Court, in McDonald, to
overturn the Slaughterhouse Cases (83 U.S. 36 (1873)), which
for well over a century had severely limited application of the
Fourteenth Amendment's privileges or immunities clause to
the states. If the Slaughterhouse Cases were disapproved, the
foundation argued, gun ownership could be protected as a
substantive right-a privilege or immunity-enjoyed by aU
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citizens that no state or government
entity could ever undermine through
legislation.
The Court granted review of only the
SAF petition, written by Gura and Chicago-area litigator David G. Sigalealthough the NRA was admitted as a
party in the case. Liberals outside the
gun-rights arena took notice of the
foundation's legal arguments, some
reacting favorably to the breadth of their
ramifications. As the New York Times
posited in a May 2010 editorial, if the
high court accepted SAF's contention
regarding the privilege or immunity
clause, it could "open the door" to protecting other .individual rights as well.
But before the matter was set for oral
argument, the NRA filed a motion asking that Gura's 30-minute podium time
be divided to permit former Solicitor
General Clement-who had represented the federal government in
Heller-to argue on its behalf.
cess and privileges or immunities arguments in our case," he says. "And we
used both arguments to win."
Ilya Shapiro, the editor-in-chief of
the Cato Institute's annual Supreine
Court review, went even further. In a
January 2010 post on Cato's website, he
termed the NRAS motion to share argument time in McDonald a ~facial slap"
at Gura's abilities. "Sadly," Shapiro
charged, "the NRA prefers to seek glory
for itself rather than presenting the
strongest case for its purported constituency of gun owners."
SAF's Alan Gottlieb feels much the
sa111e way: "The NRA may pick up the
big names to represent it in litigation,"
he says. "But big names don't necessarily do a lot in the courtroom."
Competition between the SAF and
the NRA continues in court filings
around the country. Even before the
McDonald ruling, both organizations
had set their sights on California's com-
power to adopt written policies governing the issuance of permits; these are
implemented either by municipal police
chiefs or by county sheriffs (Cal. Penal
Code §§ 26150, 26155).
Both Richards and Peruta disputed
the good-cause component of the regulations, as each jurisdiction had refused
to issue permits to otherwise qualified
applicants who could not show a special
need beyond general self-defense. Both
cases were dismissed by the district
court, and both were argued before the
same three-judge Ninth Circuit panel on
December 6, 2012. Gura represented the
Richanls plaintiffs. Clement, once again
called in by the NRA, worked with
Michel in Peruta. A third similar lawsuit
from Hawaii also was argued that day.
(See Baker v. Kealoha, No. 12-16258.)
Even in Peruta, however, the SAF has
maintained a presence. In December,
Gura filed an amicus brief opposing en
banc review, but also arguing that Rich-
"Nearly every state has a provision in its own constitution protecting
gun ownership. Americans have always had the right to keep and bear anns.'''
'f
-ADAM WINKLER. UCLA SCHOOL OF LAW
The request for argument time was
necessary, Michel says, because the
NRA believed that it alone had the correct legal approach to ensure victoryand that the due process clause would
be key. He again drafted an amicus
brief, this time on behalf of 34 California district attorneys and other parties.
The Court granted the NRAS request
for a joint appearance. Three months
later Justice Alito-writing for another
fractured 5-4 majority-reversed the
Seventh Circuit's ruling, holding that
the Second Amendment applies to the
states on the basis of the due process
clause. (McDonald v. City of Chicago,
561 U.S. 742 (2010).) Only Justice
Clarence Thomas supported overturning
the Slaughterhouse Cases. (See McDonald, 561 U.S. at 805-859 (Thomas,
J. concurring).)
To this day, Gura resents the NRAS
intervention. "We raised both due proCOMMENTS? letters_callawyerilldallyJournaLcom
plex state procedures for issuing concealed-carry weapons permits. In May
2009 the SAF and Gura, joined by the
Roseville-based Calguns Foundation,
filed Richards, the federal suit seeking
to overturn the Yolo County permitting
process. The follOwing April Michel
associated into the Peruta litigation to
challenge the permitting process in San
Diego County. Since then, the cases
have followed parallel tracks.
In general, California law prohibits
civilians from carrying firearms, whether
openly or concealed, loaded or unloaded
(see Cal. Penal Code §§ 25400, 25850,
26350). But permits to carry concealed
weapons are available to applicants who
have completed an approved course in
gun safety and training, and who can
demonstrate "good moral character"
(generally meaning no criminal convictions) and "good cause." California law
delegates to each city and county the
anls would be a better vehicle, should
the Court be so inclined.
What comes next is up to the Ninth
Circuit. Regardless, Michel says he's in
the gun-rights battle for the long haul.
He has plenty of other Second Amendment cases on his docket, and he looks
forward to the possibility of taking Peruta
to the Supreme Court, if necessary. He
regards defending American citizens'
right to keep and bear arms as a sacred
calling, not unlike today's gay marriage
movement or in ·some respects the civil
rights struggles of the 1950s and 1960s.
The stakes, as he sees them, are similar,
requiring a~ all-out commitment.
"No matter what groups like the
Brady Center say about wanting 'sensible gun regulations,' .. Michel insists,
the "end game is really about 'gun grabbing' and banning the civilian population from owning any guns. So whatever
happens, I'll still be here." •
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