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Old February 24, 2013, 02:32 PM   #21
esqappellate
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Join Date: October 16, 2012
Posts: 69
Both really. The decision not to challenge the Denver ordinance in district court meant that the court could sharply limit the case to concealed carry and the P&I argument. That may have been a miscalculation, but hindsight is always 20/20. The court doesn't and shouldn't address issues not preserved by the parties. The best path, now being followed by Gura and others, is to argue that the state can't ban both modes of carry and have the court strike down whatever method the state has adopted that imposes the ban on both. The remand is then for the state to fix it any way they want to with new legislation, ala Moore. Here, Gray could have challenged both the State law and the Denver ordinance. As it turns out, he would have lost on the state law, but might have succeeded in striking down Denver's ban on OC. Not a great result but better than the one they got. I am most distressed in this case not by the 2A ruling (which I see as is quite limited in its impact), but by the P&I ruling. I had hoped that might go the other way.
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