Defendants’ survey of precedent applying the right to bear arms is incomplete. Three federal courts have just concluded that the Second Amendment secures the right of responsible, law-abiding individuals to carry handguns for self-defense——including the District of Maryland, which struck down that state’s practically identical rationing scheme for handgun carry licenses.
And notably, the District of Massachusetts just confirmed that Second Amendment rights cannot be arbitrarily denied to non-dangerous people, striking down a law classifying aliens as unsuitable to possess firearms.
This Court should likewise ensure that firearm regulations comply with constitutional standards. Hightower’s plea for objective licensing standards and due process should be fulfilled.
Unable to contest the historical scope of the right to bear arms, or the precedent requiring its enforcement, Defendants and amicus assert an untenable ripeness theory; an argument that allowing allegedly unprotected activities in conjunction with a right allows the government to bar the right’s exercise; a bewildering argument that in the Second Amendment, “keep” is a “core” right, but “bear” is not; and misstatements regarding the function of prior restraint and means-ends scrutiny.
Venturing far beyond the record and issues before the Court, the Commonwealth seeks to convert this case into one regarding so-called “large capacity” firearms, employing that term no fewer than forty times. Notwithstanding Hightower’s testimony and extensive briefing, the Commonwealth falsely suggests Hightower desires concealed carrying specifically, and even intimates that her claim is equivalent to one for machine guns, such as M-16s.
Hightower leaves to others litigation over capacity restrictions, concealed carry, and machine guns. The issues she raised provide sufficient material for the Court’s consideration.
Defendants do not apply objective standards in licensing the carrying of handguns——a fundamental right——nor do they afford adequate due process to licensees and applicants. The judgment should be reversed.
This is the opening paragraphs (Preliminary Statement) of the final reply brief, by Alan Gura, in the Hightower
case. This completes the briefing schedule and we now await the scheduling of orals.
There are some real zingers in this brief, such as this, on pp 21 of the pdf:
Historical practice informs the Court’s understanding of Second Amendment rights. United States v. Rene E, 583 F.3d 8, 12-13 (1st Cir. 2009). Nowhere do Defendants or their amicus purport to offer any historical evidence that Americans have traditionally understood their right to bear arms to mean the right to carry locked boxes containing unloaded handguns, or that this has ever been an accepted mode of self-defense.
Were Stacey Hightower attacked by a rapist, would she be expected to defend herself with a locked box containing an unloaded handgun? This cannot be within the Supreme Court’s description of “being armed and ready for offensive or defensive action in a case of conflict with another person.” Heller, 554 U.S. at 584 (citations omitted).
The brief is an easy 49 page read.