Idaho Student Sues UI for RKBA

[Al Norris]

Having now read all three of the pleadings, I cannot see how this court will attempt the Second Amendment Two-Step: 1)Define the core of the right; 2) Define the complaining action as being outside the core holding of Heller. The "Only In The Home" mantra, we have heard so often in other cases, cannot survive this particular case.

The fall back position is to declare all University property as a "sensitive" place. Under Idaho statutes, this would seem to be an extreme reach for this court.

Alternatively, the court will have to dance around defining some definition of a "dwelling" and what is defined a "home." We did see this in one other recent case (New York).

In the pleadings (attached), the plaintiff hammers the defendant with In re Brickey, 8 Idaho 597 (1902), again and again. This is the seminal case in Idaho law that enshrines our right to keep and bear arms as sacrosanct.

I now see why the plaintiff has waited to source this case until now. The University of Idaho and the Board of Regents are the spikes and Brickey is the sledge hammer!

Regardless, should the court go against Aaron Tribble, it should be an easy appeal. The Idaho Constitution, the Federal Constitution, Idaho Statutes and Case law all combine against such a determination. It would become a circus of errors not remotely matched by Chicago in Ezell added to the Judge in Kachalsky.

 

[Isk]

As a lawyer and U of I Alumnus, I feel this is a huge waste of University resources. The University should have dropped the issue from the start and just let him have the guns.

The University is grasping at straws to hold on to a policy that has no basis in fact. I'm proud to see this man stand up to that kind of unrelenting bureaucratic BS. It is nice to see a law student get a "hands on" education.

And for those out there that like to rag on lawyers...look what this future lawyer is doing to protect your rights. We're aren't all bad eggs...

 

[aarondhgraham]

I tried, but I couldn't resist,,,

We're aren't all bad eggs...

But as a class,,,
You're such easy targets.

Sorry my friend,,,
I see a lawyer,,,
Jokes happen.

Aarond

P.S. I get most of my lawyer jokes from my lawyer buddies.

.

 

[Hardcase]

About 30 years ago, when I was a starving economics student living in Upham Hall in Moscow, a bunch of us had shotguns in our closets because it was nothing to scoot out after class for some pheasant hunting. Do you know who cared? Nobody! I know, I know - times change.

Of course, that's when Mort's was the place to hang out and the Corner Club had cheap beer.

 

[Al Norris]

I just received this reply from Aaron, that clarifies what this "Heller Home" is:

Yup, the "Heller Home" thing really took me by suprise too. Basically, the deal is this: they know that my apartment is easily shown to be a home AND if its a home then the maximum protections of Heller apply. So they are trying to essentially parse the definition of "home" in heller by taking the dicta and creating two types of "homes". They want "Heller Homes" and "Non-Heller Homes". A "Heller Home" is a home that is not found in a sensitive place. A "Non-Heller Home" is one that exists in a sensitive place, such as a college campus. Of course, this is all total fiction because they are just trying to blend the holding of Heller with the dicta. Essentially, its their way of twisting the primary thrust of Heller (people have a right to keep and bear arms in their homes) and making it completely useless to anybody. Believe me, the government will always be able to argue that something is a sensitive place if they are able to do it here. If the home is "sensitive" then everything is "sensitive." Bottom line: Heller did not distinguish between types of homes and that's what the Defendants are trying to get the court to do here because its the only way they can survive the home argument.

 

[KyJim]

I suppose non-Heller type homes have no Fourth Amendment protection either.

 

[Hardcase]

I suppose non-Heller type homes have no Fourth Amendment protection either.

Indeed, why should they have any Constitutional protections at all? This is the proverbial slippery slope that ought not to be traveled.

 

[hermannr]

Non-Heller "Home" = Incarcerated in the Pen. or the State Mental Hospital.

 

[Al Norris]

Some time last winter, I stumbled across the UI Gun Case FaceBook page and then forgot about it (I have a page, but don't do much with it - My sister ragged me about it until I joined. sigh).

Anyway, Aaron alerted me about this and asked if I would spread it around. He would appreciate you folks going there and "Like" the page so that he can see how much support there is.

So if you do the FaceBook thing, support Aaron by going there and "Liking" the page.

 

[Al Norris]

Yesterday, the MSJ hearing was held.

From the comments section of the Tribble v. Board of Education facbook page, I wrote and asked: "Was anyone there? Did anyone get a "feel" as to how the Judge was leaning?

There was this reply:

There were about 40 people in attendance. It's hard to say how the judge was leaning because both sides were asked pointed questions by him. The Defendants were asked the lion's share of those questions so perhaps the judge is being more ...skeptical of the Defendants than he is of the Plaintiff. Given that the judge did articulate the Plaintiff's interpretation of Brickey and Art 1 section 11 when he asked a question of the Defendants, the judge is seemingly leaning towards the Plaintiff on the Idaho Constitutional issue. It's hard to tell where he stands on the federal issue or the waiver defense.

Let's hope that this is a good sign. We will know, when the Judge issues his opinion.

 

[Chaz88]

If successful, how would this translate to a private college?

I ask becasue I am an Iowa concieled cary permit holder but attened classes at a private school. It is basicly the only place I go that I can not carry.

It is not, as far as I can tell, against Iowa law. But it is against school policy. I could probably skirt the policy because they do not have signs posted but I know what the policy is and do not like playing in the gray arias on this kind of thing.

I also feel that it is probably one of the most likely places that I might need to defend myself.

So could a similar type of challenge be used to confront this policy?

 

[hermannr]

Chaz88, unfortunately your problem is PRIVATE. A private property owner can do whatever they please. No, you either abide their rules, violate their rules very quietly and hope for the best, or find another school that will allow you to carry. (there are some that do you know)

 

[Chaz88]

unfortunately your problem is PRIVATE. A private property owner can do whatever they please.

That is kind of what I thought the case would be, but it usually does not hurt to ask. Thank you for the response.

 

[krucam]

Mr Tribble lost out on his case unfortunately...

http://www.spokesman.com/stories/2011/dec/08/judge-sides-ui-gun-ban-case/

 

[Al Norris]

I'm waiting for Aaron to post the decision before I make any comments.

 

[Al Norris]

Aaron has placed the Judges decision up on Google Docs. He highlighted the most glaring errors of the court.

I've only skimmed the decision and will have a breakdown later after work.

In short, this Judge is nutso-cuckoo (a legal term you may not be familiar with).

Tribble v. Regents Decision

But there may be a reason for the way this Judge has rendered his opinion. Back on Nov.12th, the Idaho Reporter, a purported "watchdog" paper, reported the following:

Stegner’s new post comes with a $124,000 salary and possible pension payoff

University of Idaho President Duane Nellis announced Friday that Sen. Joe Stegner, R-Lewiston, will leave the Idaho Senate to become the school’s chief lobbyist starting Dec. 1.

Joe Stegner is Judge Stegner's brother. Cronyism is alive and well in Idaho.

 

[Isk]

"It was reasonable for the the Regents to conclude that allowing firearms on University property could disrupt the University's learning environment..."

I don't think so.

How can you come to that conclusion without proof? Oh, its ok...the regents believe that guns can disrupt the learning environment...

That's kind of weird since this is my Alma Mater and I took a marksmanship course on campus in 2001.

 

[Armorer-at-Law]

The decision reasons that, although it is his "residence," it is not his "home," it is a "government-owned" "housing unit" analogous to a "government building."

 

[Hardcase]

In the Boise paper's web site, there is a pretty significant group of people who are of the opinion that if Aaron signed a contract that said "no guns", then he gave up the right and he's out of luck.

And they don't have a problem with it. I know what they're thinking - it's just guns, it's no big deal; if you want your guns, go rent somewhere else. Obviously the bigger issue of a state-controlled agency requiring someone to surrender a Constitutional right in exchange for renting an apartment (which is not a "home", apparently) doesn't cross their minds. And even when it's stated point-blank, they still don't see it.

I shouldn't get so wound up about the comments section of the newspaper, but I honestly was shocked at how many people thought that the University of Idaho was completely in the right on this.

I suspect that part of the issue may be that a few months ago, a student was murdered by a University of Idaho professor with a gun. Not on campus, but I think that the distinction is lost on most. It was a very nasty situation and is still getting quite a bit of media play in the state.

I guess that part of the local ambivalence has to do with the timing of the shooting and the lawsuit. Nonetheless, does that mean that rationality has to go out the window?

(mini rant off.)

 

[Al Norris]

Oh No, Hardcase. The Rant Has Just Started!

About the Judge and his brother. The probability that some impropriety exists is extremely high. But proving it may be a hopeless task. This decision juxtaposed against the Reporter article, conflict of interest might be inferred, but is by no means guaranteed.

This decision is riddled with so many errors, it's hard to know where to start.

Aaron's home isn't a home as envisioned by the Supreme Court. It is leased property. He has no possessory interest whatsoever. The building wherein he resides is on school property and the school is a sensitive place. Since the Regents operate as a State agency, the building is therefore a government building. Therefore, these all fall within Heller's presumptively lawful exceptions, and the right Aaron seeks is well outside the core.

Aaron isn't substantially burdened. He could as easily chosen to live off campus by renting or leasing any number of other houses or apartments. Should we note that any rental agreement or lease would contain the same restrictions? As in no possessory interest, and therefore not a home as "envisioned" by Heller?

There is of course, the Nordyke opinion, where heightened scrutiny will only occur if the right is substantially burdened. And the part where the Nordyke panel said that a government does not have to provide a place to exercise ones fundamental rights, is played by the Judge.

Since Aaron could have chosen to live off campus, since the government does not have to provide a place to exercise any fundamental right, nothing is burdened. Since the Regents are only regulating (not once does this Judge use the word, "ban") arms, which the Judge deems appropriate according to his interpretation of In re Brickey (see footnote 3 on page 17 - the only reference to the precedent), their interests in maintaining public safety is substantially related to the regulation (note the word, again) and therefore meets the burdens of intermediate scrutiny.

It's extremely perplexing that this Judge sees a complete ban as mere regulation. His view is in complete disagreement with prevailing case law.

The above is disjointed and does not in any sense convey the totality of this courts errors. Quite frankly, after reading the decision again, I find myself angered beyond measure. This so-called Judge has literally taken damn near everything he quoted out of context.