National Rifle Association of America, Inc., et al v. Bureau of Alcohol, Tobacco, Firearms, and Explosives

RESPONSE

N.D. Tex.July 22, 2011

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS LUBBOCK DIVISION REBEKAH JENNINGS, BRENNAN HARMON, ANDREW PAYNE, and NATIONAL RIFLE ASSOCIATION OF AMERICA, INC., Plaintiffs, vs. BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES; KENNETH E. MELSON, in his official capacity as Acting Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives; and ERIC H. HOLDER, Jr., in his official capacity as Attorney General of the United States, Defendants. Case No. 5:10-cv-00140-C DEFENDANTS’ RESPONSE TO PLAINTIFFS’ NOTICE OF SUPPLEMENTAL AUTHORITY Defendants submit their response to Plaintiffs’ Notice of Supplemental Authority. 1. Ezell v. City of Chicago, No. 10-3525, 2011 WL 2623511 (7th Cir. July 6, 2011), states: “Heller and McDonald suggest that broadly prohibitory laws restricting the core Second Amendment right - like the handgun bans at issue in those cases, which prohibited handgun possession even in the home - are categorically unconstitutional.” Id. at *13 (emphasis added). The law at issue here is neither a ban nor a prohibition on possession. See Def. MSJ Reply Br. [Doc. No. 47] at 21-23. 2. The Ezell majority “adopts a standard of review on the range ban that is more stringent Case 5:10-cv-00140-C Document 58 Filed 07/22/11 Page 1 of 3 PageID 1079 than is justified by the text or the history of the Second Amendment.” Ezell, supra, at *21 (Rovner, J., concurring), and relies unduly on an analogy between the First and Second Amendments. See United States v. Marzzarella, 614 F.3d 85, 97 n.15 (3d Cir. 2010). 3. Ezell incorrectly claims: “Intermediate scrutiny was appropriate in [United States v. Skoien, 614 F.3d 638 (7th Cir. 2010)] because the claim was not made by a ‘law-abiding, responsible citizen’ as in Heller; nor did the case involve the central self-defense component of the right, Skoien, 614 F.3d at 645.” Ezell, supra, at *17. Skoien never claimed its choice of intermediate scrutiny depended on these two factors. Instead, Skoien acknowledged that for “a categorical limit on the possession of firearms . . . some form of strong showing (‘intermediate scrutiny,’ many opinions say) is essential.” 614 F.3d at 641. See Def. MSJ Reply Br. at 55-58. Defendants make such a showing here. See Def. MSJ [Doc. No. 21-1] at 4-11, 37-41; MSJ Reply Br. at 53-62. 4. Ezell contends only that the “right to possess firearms for protection implies a corresponding right to acquire and maintain proficiency,” Ezell, supra, at *14, not that any such alleged right falls within the core right Heller recognized, nor that the Second Amendment protects a right to acquire arms. MSJ Reply Br. at 19-21. Moreover, historical “observations contravene rather than support the majority’s ensuing analysis.” Ezell, supra, at *22 (concurring opinion). Dated: July 22, 2011 Respectfully submitted, OF COUNSEL: TONY WEST Assistant Attorney General MELISSA ANDERSON Bureau of Alcohol, Tobacco, JAMES T. JACKS Firearms & Explosives United States Attorney 99 New York Avenue, N.E. Case 5:10-cv-00140-C Document 58 Filed 07/22/11 Page 2 of 3 PageID 1080 Washington, D.C. 20226 JOHN R. PARKER Tel: (202) 648-7056 Assistant United States Attorney Melissa.Anderson@usdoj.gov /s/ Daniel Riess SANDRA M. SCHRAIBMAN Assistant Director DANIEL RIESS (Texas Bar No. 24037359) JESSICA LEINWAND (New York Bar) Trial Attorneys U.S. Department of Justice Civil Division, Rm. 6122 20 Massachusetts Avenue, NW Washington, D.C. 20530 Telephone: (202) 353-3098 Fax: (202) 616-8460 Email: Daniel.Riess@usdoj.gov Attorneys for Defendants CERTIFICATE OF SERVICE On July 22, 2011, I electronically submitted the foregoing document with the clerk of court for the U.S. District Court, Northern District of Texas, using the electronic case filing system of the court. I hereby certify that I have served all counsel and/or pro se parties of record electronically or by another manner authorized by Federal Rule of Civil Procedure 5(b)(2). /s/ Daniel Riess Daniel Riess Case 5:10-cv-00140-C Document 58 Filed 07/22/11 Page 3 of 3 PageID 1081