Pursuant to the CA3 request for a supplemental briefing on the decisions in Kachalsky
and the decision in Moore,
Alan Gura and New Jersey both filed their respective briefs.
In eleven double-spaced pages, Alan Gura lays out exactly why the ca2 decision was wrong and why the CA7 decision was correct. This is a very compelling brief.
Whatever activity may lie at the Second Amendment’s core, “the interest in self-protection is as great outside as inside the home.” Id. “To confine the right to be armed to the home is to divorce the Second Amendment from the right of self-defense described in Heller and McDonald.” Id. at 12. Accordingly, the Seventh Circuit expects that ordinary Chicagoans will soon be able to carry handguns for self-defense. Id. New Jersey’s denial of the right to bear arms for all but those with exceptional self-defense needs would not survive Moore.
Moore properly recognized that “degrees of scrutiny” are not always required, as indeed they were not in that case. Id. at *26-*27. Nor are they required here, where the State simply denies that bearing arms is a right. And while intermediate scrutiny might weigh “the curtailment of gun rights” of a narrow criminal class against state interests, justifying laws infringing “the gun rights of the [state’s] entire law-abiding adult population” requires “a stronger showing.” Id. at *21.
Kachalsky largely discards history, text and precedent. Moore provides the better example of the path forward.
New Jersey, on the other hand, starts with false assumptions right out of the gate:
In Moore v. Madigan, the Seventh Circuit struck down a handgun licensing scheme from Illinois that operated as a complete prohibition on possession of a handgun in public. 2012 U.S. App. LEXIS 25264, at *21-22.
There was no licensing scheme at all in IL. What was struck down was a pair of laws that forbade any public carry at all.
From that point, agrees completely with the decision in Kachalsky
(of course) and twist the Moore
decision, in carefully selected quotes, so that in appearance, Judge Posner agrees with New Jersey (and by inference, kachalsky
Like the above quote, this is also a misleading argument. Judge Posner took the kachalsky
panel to task over their shoddy decision.