Posted 28 April 2011 - 02:53 PM
If you don't read this whole thing ... at least read the summary of Gura's argument. I love the way he writes.
SUMMARY OF ARGUMENT
Defendants’ brief, and those of their amici, are remarkable in their treatment of adverse
controlling precedent, namely, Heller, Chester, and McDonald v. City of Chicago, 130 S. Ct.
3020 (2010). Time and again, the briefs assert arguments flatly foreclosed by these precedents.
Indeed, heavy reliance is placed on the dissenting opinions in these cases, and on the briefing
proffered on behalf of the losing side. Respectfully, Justice Breyer was not in the majority in
Heller, Judge Davis was not in the majority in Chester, and the amicus brief offered on behalf of
the City of Chicago in McDonald, by self-described historians, contained an imagined history of
the right to keep and bear arms that had been utterly rejected in Heller and not surprisingly,
proved incompatible with the prevailing opinions in McDonald.
Defendants expend great effort describing what they perceive as the uniquely
unacceptable harm that flows from handgun possession—an approach rejected in Heller and
McDonald. They suggest the availability of long arms ameliorates the impact of the handgun
regulations, another approach foreclosed by Heller. They suggest Justice Breyer’s dissenting
opinion in Heller was a “concurring” opinion that reflected the majority’s views with respect to
his interest-balancing approach, a topic that elicited exceptionally strong disagreement by the
majority. Blithely disregarding Heller’s contrary instruction, Defendants suggest the content of
Second Amendment rights must be determined by judicial evaluations of competing policy
Wishing that the Second Amendment would not contain a right to carry arms, Defendants
ignore the Supreme Court’s definition of the Second Amendment’s text, and improperly seek to
limit Heller and McDonald to their facts—an outcome also at odds with United States v. Miller,
307 U.S. 174 (1939). Defendants repeatedly emphasize that they may ban all concealed carrying
of handguns, but ignore both the qualified nature of that ability, and the fact that their carrying
law goes much further, to virtually ban all handgun carry—which the same precedent condemns
Disregarding Heller, McDonald, and Chester, Defendants and their amici propose
disposing of this case using what amounts to, for all intents and purposes, the rational basis test
that these precedents prohibit. And they seek to avoid having their law treated like the prior
restraint which it undoubtedly is, because prior restraint has proven most suitable in First
Amendment cases—ignoring what is at least a strong suggestion by the Supreme Court, and the
unambiguous precedent of the Fourth Circuit—that First Amendment frameworks are suitable for
use in Second Amendment cases. That these have not been invoked by courts previously in
Second Amendment cases is merely a function of the fact that the Supreme Court has only
recognized the ability to sue state and local officials for Second Amendment violations since this
past June. It is far too early to declare the Second Amendment a dead letter, but it is never too
late to dispose of Maryland’s virtually complete infringement of the right to bear arms.
"It takes all the running you can do just to keep in the same place."
Lewis Carroll, 1872