Mike Stollenwerk posted this in a group that I run:
Oregon Issues:
The idea would be to file a lawsuit making a facial challenge to the Oregon
statute (which bans the granting of gun carry licenses to residents of most
states, but not contiguous states) as violative of the federal constitution's
privileges and immunities clause because the statute denies you the privilege
to carry in Oregon soley based upon your state of residency.
As a general matter, such discrimination is unconstitutional. Supreme Court
of New Hampshire v. Piper, 470 U.S. 274, 274 (1985) (New Hampshire’s ban on
nonresident admission to state bar “violates the Privileges and Immunities
Clause of Art. IV, § 2”). See also Lee v. Minner, 458 F.3d 194 (3d. Cir.
2006) (affirming trial court's holding that “'citizens only' provision of
Delaware's FOIA is unconstitutional under the Privileges and Immunities Clause of
Article IV, Section 2 of the United States Constitution”).
One such P & I challenge failed against New York, but see Bach v. Pataki,
408 F.3d 75 (2d Cir. 2005). In Bach, the 2d Circuit quashed a Virginia
resident's challenge to New York's handgun licensing scheme under theory that
scheme's discrimination against nonresidents violated the Second Amendment and the
Privileges and Immunities Clause by holding that: 1. The Second Amendment's
right to keep and bear arms imposed a limitation on only federal, not state,
legislative efforts; and, 2. New York's prohibition on allowing
nonresidents to obtain a firearms license did not violate the Privileges and Immunities
Clause because New York's interest in monitoring gun licensees was
substantial and New York's restriction of licenses to residents and persons working
primarily within the State was sufficiently related to that interest).
The facts in Bach are distinguishable from Oregon in that New York is a "may
issue" state which completely refuses to accept any non-resident's
application under a need to monitor permit holder conduct theory. Though I think
Bach was wrongly decided, in my opinion, Bach's legal reasoning would support
your action against Oregon,
I don't know about Oregon law, but if you prevail in an action citing 42 USC
1983 as a cause of action, you would normally be entitle to recover of legal
fees and costs as a matter of federal law at 42 USC 1988. You can file 1983
actions in either state or federal court; however, if you are going to .
You should interview attorneys licensed to practice in both state and federal
courts in Oregon to discuss tactics.
Funding ought to be able to be found given the novelty and high payoff -
especially if you are a great plaintiff - a person so upstanding that the press
and Oregon officials will not be able to disparage you in any way. You can
work deals with attorneys on finding too - like charging you a public interest
rate, but charging Oregon full rate if you prevail. My 1983 action against
PA over illegal SSN demands, Stollenwerk v. Miller, was done that way - as we
prevailed, we received over $48,000 back; but my costs were less, and the
NRA Civil Rights Defense Fund, GOA's fund, and 2 state groups helped me along
the way.
A victory over this type of discrimination would substantially improve
reciprocity across the US as states would be forced to allow any state resident to
apply for permits; the holding would support striking down permit acceptance
discrimination against residents based upon their state of residence being
different that their state of permit issuance; and finally, would encourage
states to just become shall accept states.
Somebody really needs to do this action to advance carry rights across the
US. I would expect that if you are a great looking (in a publicity and legal
sense) plaintiff, and you have a good attorney, you will be able to get
funding from various civil rights groups focused on guns to help you pay.
Washington AFL issues:
Most everything I said re: Oregon for P &I action could be applied to
Washington state's statutory discrimination against resident aliens re: gun
possession/carry, but the attack would be based upon a violation of federal equal
protection rights under the Fourteenth Amendment.
I think I provided some authorities before on this - state classifications
based upon alienage, as applied to resident aliens, are presumptively
unconstitutional.
In my opinion, this case would be nearly iron clad - and I bet some
immigrant or ACLU type groups might even want to help fund the action.
