Confusion seems to be reigning in the wake of a federal court ruling last week that the parks gun ban adopted by the Seattle Parks & Recreation Department under former Mayor Greg Nickels is constitutional.
U.S. District Court Judge Marsha Pechman delivered her ruling in a case filed against the city by Kent attorney Robert Warden. He had sued the city on Second Amendment grounds, which some legal analysts have privately suggested was premature because the U.S. Supreme Court has yet to decide whether the Second Amendment is incorporated to the states and local governments through the 14th Amendment.
It was meaningless that the 9th Circuit Court of Appeals in San Francisco last year issued a ruling in the Nordyke v. King case that the Second Amendment is incorporated, because that ruling was vacated, pending a high court decision. Such a ruling is anticipated by late June, thanks to the case of McDonald v. Chicago, which was filed by the Second Amendment Foundation, Illinois State Rifle Association and four individual plaintiffs two years ago. Oral arguments in that case were held before the Supreme Court on March 2, ironically the same day that Warden argued his own case (he is representing himself as a plaintiff) before Judge Pechman.
Plaintiff’s Second Amendment claim fails for the simple reason that the Second Amendment does not apply to the City of Seattle under current Ninth Circuit law. Plaintiff’s Equal Protection claim is without merit because the Park Rule passes rational basis scrutiny.
By some accounts, Pechman’s ruling as it applies to the Second Amendment was correct. She wrote that Warden’s “Second Amendment claim fails for the simple reason that the Second Amendment does not apply to the City of Seattle under current Ninth Circuit law.” Slam dunk, end of story? No, not quite.
Because Warden also brought the park ban’s legality into question under the state constitution, Pechman allowed herself to rule on the ban’s constitutionality under Article 1, Section 24. This is an area where some attorneys have privately suggested she should never have been tempted to go, but that the Warden lawsuit opened that door. She slammed it shut, thus giving Seattle a new ground on which to base its appeal of the SAF/NRA case.
The Second Amendment Foundation, National Rifle Association, Citizens Committee for the Right to Keep and Bear Arms, Washington Arms Collectors and five individuals also sued Seattle over the parks gun ban, and they won decisively in the King County Superior Court three weeks ago with Judge Catherine Shaffer presiding. That case is Chan v. City of Seattle. The SAF/NRA attorneys never argued their case on constitutional grounds, but only on the grounds that the Seattle ban violated Washington’s model preemption law that placed all authority for gun regulation in the hands of the state legislature.
You still can bring your gun to the parks. The U.S. District Court judge was only dealing with the constitutional issue, not the state issue and the state ruling still stands.”— Parks Department spokeswoman Joelle Hammerstad
Because SAF/NRA won on state preemption, the Seattle parks ban is nullified, no matter what Judge Pechman ruled. Even the city recognizes this, which may explain why they will appeal Shaffer’s ruling on constitutional grounds, which were never claimed by the plaintiffs in that case.
Warden has appealed Pechman’s ruling. His case may not move beyond that notice of appeal before the Second Amendment ruling on the Chicago gun ban case is decided by SCOTUS. At that point, it is likely his complaint becomes moot.
In her ruling last month, King County Superior Court Judge Catherine Shaffer determined that Washington law does, in fact, prohibit cities and other municipalities from restricting firearms possession. Only the state Legislature has authority to enact such restrictions, she ruled.Seattle must abide by that ruling. The city has taken down the 116 signs it had posted in parks and community centers announcing that firearms were prohibited.
Adding to the confusion was a piece by a Seattle Weekly staffer that suggested Warden’s lawsuit was being funded by SAF. That is simply not true, and it is stunning that somebody from the Weekly didn’t check that before the column ran. Indeed, Warden was funding this out of his own pocket, and when he appealed to a gun rights forum last month for financial support, he got a rather chilly reception from several people. That is an irony in its own right, since on the same forum, for Open Carry activists, more than a few of them originally regarded Warden as the guy with the stronger case.
That may be confirmed in a couple of months, during which time our local case, Warden vs. Seattle, may be on appeal at the 9th Circuit. (The plaintiff is funded by the Second Amendment Foundation and other advocacy groups.)--Seattle Weekly
A week before Pechman issued her ruling Warden actually visited the SAF office and met privately with SAF Executive Vice President Alan Gottlieb. Perhaps it is a shame that meeting didn’t happen last fall, before Warden launched his federal lawsuit. There might have been a different outcome, or at least one that limited Pechman’s opinion to federal constitutional issues, where it belonged.
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Comments
Whether or not you support me or approve of my methods, I am spending my own time and money fighting for the right to bear arms for everyone, not just for a state fortunate enough to have a strong state constitutional right and a preemption statute.
Second amendment incorporation will simply protect the right itself from being infringed.
It will not prevent states from passing firearm laws. And any laws currently in place may continue to be upheld.
Although Dick Heller now has the individual right to keep and bear firearms in Washington D.C., he must still do so in accordance with local law. And those laws are very restrictive.
You can keep and bear, but only where and when allowed to in other words. Weapon type restrictions will also still apply.
@Bob
Your time and money isn't at issue. At issue are your methods, which amount to the legal equivalent of a suicide charge on a machine gun nest, and getting cut down in a "blaze of glory."
There's nothing wrong with that, in and of itself. When we're talking about lawsuits though, your recklessness can have dire consequences for all gun owners, not just yourself.
For my money Bob, you've done more harm than good.
Mark A. Taff:
Please be specific: what about my methods are reckless in your no-doubt highly educated opinion?
Bob
"All laws repugnant to the Constitution are null and void"
-John Marshall,SCOTUS, Marbury vs Madison, 1803
"Courts/Governments which are repugnant to the Constitution are null and void"
-sofa, 2010
We can read. 2A acknowledges that the right shall not be infringed. Infringment violates the agreement that grants them power. They nullify themselves.
"Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government..."
-T. Jefferson, et al, Declaration of Independence, 1776
@Bob
I wouldn't characterize my opinion as highly educated. I'll let my statements stand or fall on their own merits. Among the things I find reckless:
1. The Second Amendment Foundation, et. al., had a rock-solid case--the park gun ban was going down. Their case would take down the ban, without opening any doors for the court to issue a detrimental ruling. Apparently, getting the rule overturned wasn't enough for you, so you took your own weak case to court and gave the court plenty of rope to hang you and your fellow gun owners.
2. Arguing in a federal court that the 2A protects your right to carry a gun in a park (even though I agree with you), when said federal court's current holding is that the 2A doesn't apply to the states (and didn't even protect the right to keep a handgun in your own home in D.C. until last year) is a surefire losing case. You have handed anti-gunners a propaganda victory.
Mr. Warden, I (and I suspect many others) do not question your intent. Your methods, however, may have cost us a bit. I’m not going to take you task for this but with all due respect do please try to learn something from it. There is no reason someone with your drive and resources cannot be a positive force in the future. And in all seriousness I do thank you for making an effort – more effort than I can honestly say I’ve made.
Go Bob Go!
The same old same old, pick and choose group which section of the bill of rights you like and which one you don't?
"This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing government, they can exercise their constitutional right of amending it or their revolutionary right to dismember it or overthrow it."
-- Abraham Lincoln, 4 April 1861
Selective Incorporation? From the States Rights Committee of the judiciary, flying that Stars and Bars proudly since April 12, 1861
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