So let's explore what Gura can do, at this moment.
- Ask for reconsideration of the panel.
- Ask for an en banc hearing.
- Petition the SCOTUS for a grant of certiorari.
The first two items are generally done together in a single motion (per esqappellate, a retired appellate attorney over at MDShooters). IIRC, there is a 14 day time limit to file the motion. Considering that the CA2 very seldom accepts motions for en banc
hearings, this would be a long shot. If accepted, Alan Gura runs the risk of a negative ruling with a well written decision (as opposed to this piece of circular writing).
If Gura decides to seek a petition of cert, he can attempt to get it before the Court in this years session. Or, he can take his time (he has until Feb. 27, 2013 to file) to craft a very well written brief, with the goal towards next years court session (and an early Oct. 2013 hearing date).
Understand, there are risks in carrying this case further. Alan Gura will necessarily be weighing those risks. The State of New York will continue to quantify this case as a concealed carry case, as opposed to Gura's general right to carry. This will be an obstacle, as the lower courts have assumed the State is correct and relegated Gura's actual case to footnotes. This will be no small feat to turn this around, at this stage.
Should Gura go for cert, and it is granted, the Court will not simply GVR the case (as some have implied). The Court will have to reach the merits and give some guidance to the lower courts before any such remand can be made.
A more likely scenario (should cert be sought and granted) would be for the Court to decide if public carry is close enough to the core right of self-defense, that the State law should fall. That's not as easy as it might seem to us, on first blush.
I believe that Justice Thomas and Justice Alito would be on our side. C.J. Roberts and Justice Scalia would lean towards our side, but would have to be convinced.
Justice Kennedy however, would have to be coerced. Such coercion would necessarily entail Judge Posner (CA7 - Moore/Sheppard
) issuing a well written decision in favor of the SAF/NRA. Gura holding back (in the hopes of a favorable CA7 decision) in filing for cert is a tactical response I believe he will make.
Judge Posner is very well respected in legal circles, even within the Supreme Court. A decision written by him (Posner) striking the IL law and stating that citizens must be allowed some manner of carry for self-defense, would go a long way towards turning the current case from one of concealed carry alone, back to allowable carry in some form. This would probably move Justice Kennedy over to our side.
Too, should a favorable decision be given at the CA7, and IL moves for cert, the odds for Kalchalsky would have just increased.
There are several other scenarios, depending upon what the CA4 and CA3 decide. So, at this point in time, the dynamics are pretty fluid.
With all that in mind, see: N.Y.'s Concealed Gun Licensing Scheme Is Upheld by Circuit