Alan Gura Files for Cert in Kalchalsky


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Al Norris
January 9, 2013, 06:38 PM
Alan Gura offers the Court 2 questions. The first question is the most important one:

1. Does the Second Amendment secure a right to carry handguns for self-defense outside the home?

If this question is answered in the affirmative, then the next question becomes the crux of the holding:

2. Do state officials violate the Second Amendment by denying handgun carry licenses to responsible, law-abiding adults for lack of “proper cause” to bear arms for self-defense?

"Proper cause," good and substantial," "good cause," these (and similar statements) are all the reasons that "May Issue" States have used to deny the right to its citizens. A grant of cert and an opinion in Gura's favor, will affect every State that does not use objective criteria in determining who may lawfully carry and who may not.

Alan Gura starts right out of the gate, with:

A “right” that may not be exercised absent a government official’s discretionary determination that an individual has “proper cause” to exercise it, is not much of a right.

In various parts, Gura introduces the prior restraint argument (to keep that argument alive, I suspect), such as this:

But for purposes of certiorari, it suffices to observe that Petitioners’ “crude” understanding of the Second Amendment is informed by Justice Alito’s opinion in McDonald, which rejected the argument “that the Second Amendment differs from all of the other provisions of the Bill of Rights because it concerns the right to possess a deadly implement and thus has implications for public safety.” McDonald, 130 S. Ct. at 3045.

While there are quite a few good points in this petition, I believe the following paragraph is aimed directly at C.J. Roberts:

The lower court’s reliance upon NFIB is misplaced. Whatever else the Affordable Care Act concerned, it did not implicate a fundamental, enumerated right to refrain from buying health insurance. Stating that Congress is presumed to have acted within an enumerated grant of legislative power – a “permissive reading of these powers,” NFIB, 132 S. Ct. at 2579 – is hardly the same as declaring that legislatures are presumed to honor individual rights where those rights are profoundly impacted. NFIB overruled neither the constitutional doctrine announced in Carolene Product’s fourth footnote, nor Heller’s application of that doctrine to the Second Amendment.

Which I think is a good reminder.

Additionally, I also like the ending:

Respectfully, this Court’s decisions in Heller and McDonald, like the Second Amendment to which they gave operative force, were not published with an asterisk. “[W]hen a lower court perceives a pronounced new doctrinal trend in Supreme Court decisions, it is its duty, cautiously to be sure, to follow not to resist it.” Perkins v. Endicott Johnson Corp., 128 F.2d 208, 218 (2d Cir. 1942), aff ’d, 317 U.S. 501 (1943) (footnotes omitted).

This Court should answer the lower courts’ recurring requests for additional guidance in this area, and resolve the splits of authority regarding the essential question of the Second Amendment’s application in public settings.

Now, if things go smoothly, we should know by March or April if the Court will grant cert. No chance of hearing the case until Oct. or Nov. of the next session. However, if cert is granted, it will likely put a hold on every single 2A case that we have been following.

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MagnumDweeb
January 9, 2013, 09:01 PM
An inch at a time baby, an inch at a time. If this goes our way it won't be a turning point but it'll be an opportunity to create a turning point. If folks in New York City, Chicago, Maryland, and more parts of California join our ranks as lawful law-abiding concealed carry permit holders, it'll look good for us. Folks understand once the gun grabbers scrap one right they go for the next. Gun grabbing is an insatiable maw, liberty is a struggle against ignorance.

bainter1212
January 9, 2013, 09:32 PM
I'm hopeful for a favorable decision in this matter as well. My county (in CA) didn't hand out permits without "good cause" until we elected a new Sheriff. Now all of a sudden we are "shall issue" (though not by law). The choice to hand out permits is entirely up to the Sheriff's dept. Not a good precedent when you put the power of discretion as to whether to affirm or deny a right, in the hands of politicians.

bushmaster1313
January 9, 2013, 09:32 PM
This case is bigger than the 2nd Amendment.
Much bigger.
It concerns each and every right we have as Americans.
The fundamental question (assuming there is a right to keep and bear arms outside the home, is this: Does the existence of a "Right" provide sufficient justification for its exercise or can the government require more.

Horny Toad
January 10, 2013, 10:59 AM
....If folks in New York City, Chicago, Maryland, and more parts of California join our ranks as lawful law-abiding concealed carry permit holders, it'll look good for us......

Hey, don't forget the oppressed here in NJ. :(

Watching this very closely.

bushmaster1313
January 10, 2013, 11:03 PM
Hey, don't forget the oppressed here in NJ.

Hello Comrade.
Why you complain.
Reasonable and enlightened gun laws passed by Glorious Legislature eliminate all crime in Garden State.
Counter-revolutionary idea in post reflect dangerous influence of subversive running dog Tea Party element.
Report reeducation center in morning.

colorado_handgunner
January 10, 2013, 11:06 PM
Hello Comrade.
Why you complain.
Reasonable and enlightened gun laws passed by Glorious Legislature eliminate all crime in Garden State.
Counter-revolutionary idea in post reflect dangerous influence of subversive running dog Tea Party element.
Report reeducation center in morning.

Lol. Funny and sad at the same time.

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