Summary Judgement.... Idaho Woman Defeats Obama’s Top Lawyer on Guns

by William Perry Pendley

President Obama’s Justice Department left nothing to chance last month in a major Second Amendment battle being fought in Idaho that will affect millions of acres of federal land throughout the country. Pushing aside Idaho’s United States Attorney, a top Justice lawyer flew to Boise to argue that the U.S. Army Corps of Engineers’ prohibition on possession of a functional firearm at its public recreational sites in 43 States is constitutional. Shortly after the lawyer got back to Washington, but likely before he filed his expense report, the Idaho federal district court ruled for the Idaho woman who filed the lawsuit.

Most Americans would be surprised to learn that the Corps is the nation’s largest provider of water-based outdoor recreation; in fact, it administers 422 lake and river projects in 43 states spanning 12 million acres, including over 700 dams—that hold back over 100 trillion gallons of water—encompassing 55,000 miles of shoreline, 4,500 miles of trails, 90,000 campsites, and 3,400 boat launch ramps. Waters under its control constitute 33 percent of all U.S. freshwater fishing and attract 300 million visitors a year. Unfortunately for those visitors and contrary to the Supreme Court’s 2008 ruling in District of Columbia v. Heller, a regulation adopted by the Corps in 1973 bars the carrying of firearms for self-defense and the possession of functional firearms in temporary residences on its lands.

The Corps’ regulation is a problem for Elizabeth E. Morris of Lewiston in Nez Perce County who was issued an emergency license in 2012 by the Nez Perce County Sheriff to carry a concealed handgun due to threats and physical attacks against her by a former neighbor. She regularly carries a handgun for self-defense and regularly uses Corps-administered public lands near the Snake River in Lewiston, Idaho, to boat with friends, regularly walks the Corps-administered paths in the area with her dog, and/or her family, and must travel across Corps-administered lands to reach Hells Gate State Park, which accesses Hells Canyon, the deepest river gorge in North America.

After seeking an exemption from the Corps’ regulation via its federal attorneys and getting no response, in August 2013, Ms. Morris and another Idahoan filed a lawsuit in Idaho federal district court and sought an immediate, nationwide preliminary injunction barring the Corps from enforcing its regulation against her and subjecting her to arrest—or worse. The Corps opposed that motion and moved to dismiss her lawsuit. The Idaho federal district court not only rejected the dismissal motion, it also ruled that Ms. Morris was likely to win her lawsuit and was entitled to the injunction.

Noting that the Corps’ “regulation bans carrying a loaded firearm for the purpose of self-defense [and] carrying an unloaded firearm along with its ammunition” and that “[a]n unloaded firearm is useless for self-defense purposes without its ammunition,” the district court held that the regulation “burden[s] [Moore’s] Second Amendment rights.” Further, the district court held that the regulation’s ban on “firearms and ammunition in a tent on the Corps’ sites” “poses a substantial burden on a core Second Amendment right….” Finally, the district court concluded that, because the “regulation contains a flat ban on carrying a firearm for self-defense purposes[,]” which “completely ignor[es] the right of self-defense, [it] cannot be saved….” As a result, the district court found the regulation “simply too broad [because] it violates the Supreme Court’s description of Second Amendment rights in [Heller]. This regulation needs to be brought up to date.”

The Idaho district court did not stop there. After determining that Ms. Morris is likely to prevail following an “evidentiary hearing or trial,” the district court prohibited the Corps from enforcing its regulation “as to law-abiding individuals possessing functional firearms on Corps-administered public lands for the purpose of self-defense.” That means that, on Corps recreational sites from California to Connecticut and from Minnesota to Mississippi, Second Amendment rights prevail. Over to you, Mr. President.

Mr. Pendley, a Wyoming ­attor­ney, is President and Chief Legal ­Officer of Mountain States Legal Foundation and a regular -­­c­olum­nist in ­Loggers World.-­