As mentioned, I went to hear Alan Gura speak at the Federalist Society meeting here tonight. Turnout was sparse, to say the least (liberal university, in a liberal town, hosted in the law school, two weeks before finals) but Alan didn't seem fazed in the least.
Time flew listening to that man speak. I scribbled notes as I could and filled up a full 8.5x11 page with my chicken scratch. I'm mostly transcribing that here and will fill in as best I can. Anything in quotes is as close to a direct quote as I can come.
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Many comments have been made that the Heller and McDonald decisions were vague and provided no real interpretation for further 2A cases. Alan (AG) disagrees and believes the decisions were well thought out and provide plenty of guidance and potential for future decisions.
There are several points upon which suits may be based:
1) A ban on functional firearms.
(Which is what was overturned by the Heller decision.) If there is a right to keep and bear arms, the right clearly means *functional* firearms. (Massachusetts, I'm looking at you here.) AG made a point of saying, "Yes, you could own a shotgun, rifle, etc, but it had to be secured or disassembled, so if someone broke into your house you could ... what, club them with it?"
The main purpose of the Second Amendment is self defense. AG did NOT specify defense from whom, however.
Post-McDonald, Chicago implemented a ban on accessing or operating a firing range within the city. This was litigated against and overturned in the 7th Circuit, as Chicago requires firearm training in order to receive a firearms permit, but then made receiving that training effectively illegal.
2) Categorical ban on types of arms.
The Second Amendment specifies "arms", not "firearms", and therefore many types of arms are affected - AG mentions knives, clubs, and nunchuks, specifically. (Apparently there is a case pending in NYC regarding nunchuks.)
Part of the Heller decision noted that handguns were commonly used in crimes as well as for self defense. The court noted that the potential for criminal use was irrelevant to the rights of the public.
AG mentioned the "common use" doctrine along with the possibility for new technology; if a new technology is developed and quickly banned it can't become "commonly used". AG notes that this would be analogous to a 4th Amendment expectation of privacy; an item can't effectively be banned during development [haha, says the ATF - Z.] and thus may enter common use before further restrictions can be written.
California has a case pending along these lines regarding the "approved handgun rosters" (MA, you again!) and the idea that it is not the legislature's place to determine what's acceptable and what isn't. Case in point, the "Assault Weapon" Ban in effect in several states, which bans firearms based on primarily aesthetic features.
Ref AWB - "Heller 2" is still pending, the circuit court upheld the ban based on the fact that there are "other suitable firearms" available that don't violate the ban. AG's argument is that this "balancing act" is pointless and fallacious. [I didn't totally follow at this point, he referenced a few things I'm not familiar with and didn't scribble down. - Z]
(Side note to self - look up Wilson v. Cook County, IL for info.)
3) CCW.
Three (four) methods of handling this so far: constitutional, shall-issue, and may-issue (and IL, no-issue). AG acknowledges that states have the right to place restrictions on carry; e.g. bars, restaurants, schools, etc.
May issue: "This type of law is doomed." AG believes it indicates prior restraint. A right may be licensed but requires consistent objective standards, which may-issue does not have. [In NY it's at the county judge level, and his personal politics enter into it. - Z.]
RKBA means outside the home. Court has confirmed that the Second Amendment (and all the others) must be interpreted using their original common understanding. "Bear" means "carry". Not in your own house, but out and about.
Interestingly, there was no argument in Heller's case (from Heller/Gura) about carrying in public - but DC argued against it, and lost. If DC hadn't argued against it, the court wouldn't have had to express an opinion.
However, if there is carry in public, the laws about "sensitive places" and banning carry therein are presumptively lawful; but there's a corollary to that: if sensitive places are forbidden, then non-sensitive places must be OK.
Historically speaking, a ban on CCW was accepted because it only proscribed one manner of carry: concealed. It was seen as the method of less-savory individuals, and a gentleman wouldn't hide his arm. Modern society has reversed this and the state has the authority to define the method of carry (open/concealed) but may not completely ban carry. Obviously, CCW is the currently-preferred method from that standpoint.
4) "Catch-all"/"Construction Zone"
Suits where constitutional interpretation may not provide a resolution. First and Second Amendment have similarities in this area. Suits with lower standing (e.g., domestic violence and firearms possession, felon-in-possession, etc) will likely receive a lower level of scrutiny but still require the government to prove their case. Better standing leads to stricter scrutiny. AG mentions a case in the 7th Circuit, Azell (sp?).
Alan opened the floor for discussion at this point, after 35-40 minutes of talking.
Q: does the 2A have to play catch-up to modern society as technology improves?
AG: No. 2A (and the rest) are not stagnant. 1A and 4A have kept pace with technology, to cover broadcast, cars, electronic media, etc.
Q: Brown v. EMA (sp?) and government control of ideas - could this have any bearing on 2A issues?
AG: Possibly. Reference range ban in Chicago, which was clearly gratuitous with no study or supporting evidence. "We're not trying to show malice on the part of the government. We're not litigating over the state of mind of the legislators, only that they exercise lawful authority."
Q: Question about choosing plaintiffs and suits to pursue.
AG: Not easy, many things factor in. However, "no one is more arrogant or reckless than a pro se individual, [... and] they are probably the biggest threat we have in the 2A community".
Q: ref Kachalsky v. Westchester.
AG: Appeal brief filed with Circuit court early this month, government brief due in February.
Q: Why/how did you choose 2A law?
AG: I've always had a strong personal belief in the Second Amendment, and while I was in DC I got a call from Bob Levy that they needed a litigator for a case. Went from there.
Aside from AG: Not sure we'd ratify ANY of the Bill of Rights in today's society, but the framers left us an excellent document to work from.
AG: Palmer v. DC still pending decision (manner of carry in DC).
I asked if he had any hopes/desires/plans for the Hughes Amendment and/or GCA68, and the answer was a very blunt, "No." Alan did elaborate then, however: there are bigger fish to fry, and that'd be an uphill battle. He has suits for people that simply want to own a handgun, which is a much easier and clear-cut case to win. "Why waste time making bad law?" Alan is sorry some of the MG fans feel like they're being ignored or "thrown under the bus", but that's his choice as a litigator - and his job is to win cases.
This is a point of view I agree with: baby steps. Let's get everyone to legal carry first, then we can worry about dismantling GCA, NFA, Hughes, etc.
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The whole thing ran just over an hour, and RollsCanardly and I got our picture taken with Alan just because. I'll drop that up here sometime soon. Epic night.
1 year ago
