The Second Amendment Foundation (SAF.org) is responsible for around 80 percent of the major 2A cases we have won. The Shooter’s Log had a chance to sit down with the SAF’s founder, Alan Gottlieb and ask him about the lawsuits against Illinois’ recent gun bans, the ATF’s ban on bump stocks, pistol braces, and the SAF’s victories in Bruen v. New York, McDonald v. Chicago, the Heller decision, and more.
From the audio transcript:
Illinois passed a silly law that not only bans semi-automatic firearms and standard capacity weapons, but it goes through a whole bunch of other stuff aimed at making gun ownership horrible in the state of Illinois. The Second Amendment Foundation filed suit against Illinois’ latest gun control measure just before the midnight deadline a few days ago. I am very excited about the suit. We have a number of plaintiffs involved and filed in the Southern District of Illinois.
Recently, we were assigned a judge who, happily, was a Trump appointee. Hopefully, that means we are going to get a good, fair hearing at the trial court level. We have asked for a temporary restraining order/preliminary injunction. Right now, we are waiting for our court dates — all of which will be updated on our website at SAF.org. By checking SAF’s site (and The Shooter’s Log) you’ll be able to track the case from there.
*** UPDATE: An Illinois state court judge has granted a limited temporary restraining order against the enforcement on 1/20/23. Unfortunately, at this time the restraining order only affects the 860 people named in the suit.
I feel really good about it, said Gottlieb. In June, the Supreme Court came out with the Bruen decision. I expected new laws as a result. However, I expected states to go down one notch and pass laws that were less restrictive than Bruen in an attempt to pass constitutional muster. Instead, Illinois passed laws way more restrictive than what the Supreme Court threw out in Bruen.
It is not just a state senator or two pushing this. Governor Pritzker is heavily against firearm ownership and gun rights. But Illinois is not alone. California, New Jersey, and New York have all went more restrictive than Bruen. It’s like they are all saying, “The hell with the Supreme Court and Bruen. We are going to pass laws that are more restrictive than you threw out!”
So, since Bruen, the SAF has been able to get restraining orders in the lower courts in New York for two of its lawsuits, a temporary restraining order against New Jersey, we have won a couple in California, and we are pursuing Illinois of course. The SAF and gun owners are winning since Bruen, but it is a process. A ruling from one judge is not final. We have to still go up the appeals process. However, the SAF’s track record since Bruen is pretty damn good!
The problem we have is gun owners are impatient — and I get that. They want the Supreme Court to take care of it today and for it to be done. However, the courts just don’t work that way. It takes time and money. For the Illinois case alone, the SAF has seven attorneys working on it.
Will Illinois see any relief soon?
If we can get a temporary injunction/restraining order, Illinoisans could get some temporary relief. However, the state would probably appeal that. The Appellate Court could then stay the order, and it would likely bounce back and forth between the courts. However, if the Appellate Court stays the order, it puts our lawsuit on a fasttrack. In that case, it could get resolver quicker.
If the court does not grant a temporary injunction or restraining order, then we will immediately go to the Appeals Court, which would shorten it as well. But you can never out guess the courts. They work slow. The opposition can throw a lot of procedural roadblocks in your way to delay the suit and run up our costs. (The states get to use taxpayer money). In Illinois, the state has really learned how to use the roadblocks and up out costs.
That said, Illinois has been the most successful state for the SAF’s litigation record — McDonald v. Chicago, which knocked out the handgun ban and incorporated the Second Amendment through the Fourteenth Amendment making it applicable to all states. This opened the doors to a lot of litigation that we could not have brought to the courts otherwise. Without the McDonald decision, the SAF would not have been able to even begin the Bruen lawsuit.
But, it did not end with McDonald. Chicago passed laws that you had to have range training to own a gun but made it impossible to have a gun range in Chicago. The SAF sued (Ezell v. City of Chicago). After that, we had to block another maneuver in Ezell 2.
Another big Illinois case for SAF, which is not often talked about was Moore v. Madigan. The SAF challenged the Illinois law that forbid carrying a gun ready to use (loaded, immediately accessible, uncased). At the time, Illinois was one of the few states that did not allow concealed carry, did not issue a permit, nothing. The SAF sued, got it struck down, and Illinois was forced to pass a “Shall Issue” law. This allowed the citizens of Illinois to carry a firearm for self-protection.
While the SAF has had phenomenal track record in Illinois, the state has learned its lessons. Sadly, those lessons were not “to be more friendly to the Second Amendment,” but how to make it more costly and more time consuming for the SAF to get its victories. Unfortunately, other states are learning Illinois’ lessons as well.
Founding the Second Amendment Foundation
When we founded the organization, one of our goals was to eventually get a case to the Supreme Court. Remember, this was in 1974. At that time, there was no foundation for litigation on Second Amendment rights. Everyone likes to quote the Constitution, but it takes a lot more than that to get a case heard in court. You have to a foundation set out for your case.
Prior to 1974, there was only one court victory regarding the right to keep and bear arms. Believe it or not, the case was not even about guns, nor was it a Federal case. It was a case out of Oregon about carrying a knife. The State Supreme Court ruled that the state could not regulate the right to carry a knife, because you have a right to carry a knife for self-protection.
There were no law review articles, no intellectual law information or history regarding the Second Amendment – It just wasn’t published at all!
So, we held a legal scholars conference at Boston University. We brought in a couple dozen key attorneys to determine what we needed to build a Second Amendment foundation, so attorneys could file briefs and cite things in the briefs.
A number of years later, we held another conference at the University of Arizona with about 60 people — not all were pro-gun either. They antis wanted our literature and to understand our argument, so they could find weaknesses to exploit. We outsmarted them. We used them as Guinea pigs, they just didn’t know it.
Fortunately, the Dean of the University of Florida’s law school was there, and he was the expert in Fourteenth Amendment incorporation. He assured us that we would never get anywhere on our cases, because the Second Amendment had never been “incorporated.” You could not file in any state to get it incorporated, because the Supreme Court had never ruled that the Second Amendment was an individual right.
When our right to own a handgun for self-defense was affirmed in the Heller decision, we filed the McDonald v. Chicago lawsuit the same day. With Heller, we knew we would win McDonald. With the McDonald victory, we got the Fourteenth Amendment incorporation which made the Second Amendment an individual right.
It took a lot of strategic maneuvering and filing of particular cases to the Second Amendment incorporated. Now, over 80 percent of the case law defending our Second Amendment rights are won by the Second Amendment Foundation and/or our attorneys. This has allowed others to also file suits and cite the cases the SAF has won.
Bruen v. New York
Bruen was the first major Second Amendment case to be heard by the Supreme Court in decades. We were certain that we were going to win Bruen. We also knew that a win with Bruen would with give us the case law and standing for a lot of other lawsuits that we had been blocked from. These cases were broken down into four categories:
- Lawsuits that the SAF had not brought because we did not have enough legal clout from other court rulings.
- Cases the SAF filed but did not win. Now, with Bruen, th SAF had the standing to go back and win those cases.
- There are several cases we filed in the 12 months before Bruen, knowing we did not have the standing at that time, but that we would win after we won Bruen.
- We did not expect this category, but it comes from states such as Illinois passing more restrictive laws than what the Supreme Court struck down in Bruen.
Currently, the SAF has 43 active cases it is pursuing. Even a large, national law firm is unlikely to be in court on that many cases at one time. You may be negotiation stages on some, and discovery on others, but you would not be physically active and in the courtrooms on 40+ cases at one time.
ATF Bans of Braces, Bump Stocks, and Definition of a Frames and Receivers
When the ATF released its older rule on pistol braces in 2021, the SAF jumped into action and filed suit. The ATF failed to follow the American Procedures Act, so it had to reopen the comment period.
To be honest, after that we slow-walked the case. That was good for firearms industry; they could continue to make and sell braces. This lasted much longer than the SAF or ATF expected due to several amendments to the suit and stays issued by the judge. Now that the final rules have been issued, the SAF is again amending its suit to address the new rules.
Because of these actions, the SAF is first in line to sue the Federal Government. The ATF is not completely stupid though. Two of the SAF’s lead plaintiffs’ are disabled. The ATF issued an exemption for disabled people, in an attempt to knock our most sympathetic plaintiffs out of the suit. In doing so, the government is still trying to hold on to the power to determine which brace or braces disabled persons can use.
The ATF also wants the braces to be ones disabled people can use, but the braces would have to be designed for them, but no one else. The ATF’s arbitrary definitions have a track record of causing it trouble anyway. However, the Second Amendment Foundation has the lawsuit that is first in line to be heard by courts challenging the new rules on braces.
The SAF also has a suit against the Federal Government for its new ruling on the Definition of a Frames and Receivers. Once again, the ATF did not comply with the American Procedures Act. The SAF has won a temporary injunction blocking the implementation of the Frames and Receivers Act. We have lawsuits ready to file or be amended once the ATF complies.
How can you help?
Helping is simple. Donate or become a member of the Second Amendment Foundation. A 1-year membership is $15 — less than a box of ammunition. Of course donations are also accepted. That’s a small price to pay to support the organization that secured the Second Amendment as an individual right, and the organization that is most likely to defend your rights in the future.