[LockedBreech]

Well, I just came out of Gura's presentation. I thought it was wonderful. Much to my chagrin, it ran into my Civil Procedure II course, and with a final in two weeks I couldn't afford to miss. For now, I'm giving you all my raw notes, in my weird bullet-point format, with typos and all. I'll try to summarize later.

Al, I'm sorry I missed you. I looked for you but having to rush out I wasn't able to find you. I hope you also enjoyed it.

Also, I got the amazing opportunity to chat with Mr. Gura for about 15 minutes before the discussion. Very sharp, very friendly.

Apologies for any messiness / non-sequiturs until I can summarize. I was typing as he spoke.

Edit: Now that I post, I see it didn't properly indent. Promise I'll clean this up later. The Q&A is the most valuable.

• Federalist Society presenting
• Partner of Gura and Possesski?
• Discussion: Where we are going currently in the state of the Second Amendment
o How courts are interpreting
• In 2008, Supreme Court declared 2nd Amendment secures an individual right
o Not related to any militia duty / militaristic purpose
• In 2010, McDonald v. Chicago, Supreme Court confirmed as a fundamental right for all levels of government, including state and local
o Most gun laws exist at the state and local level, so this was critical
• Gura will preserve most of the talk for Q&A
• Prepared Remarks
• Focus on a current issue confronting the courts: Gura predicts this issue will get to the Supreme Court
o Issue: Carrying guns in public for self-defense
• Heller case concerned only Heller’s attempt to possess a handgun in his home
o Factual circumstances the same in McDonald
o Heller only got a permit for the home
• Opponents say this means the right is limited to the home
• Washington, D.C. had an unusual law – Felony to walk around in public without a permit, misdemeanor not to have a permit inside your home
• Court was not limiting the scope, just tracking the factual circumstances
• Court in Heller defined right to bear arms
o As “Carry” guns
o “To bear an arm…to have on your person, or clothing, or pocket, for purposes of being armed and ready in case of confrontation”
o This is not dicta, but a part of the holding, to the chagrin of the other side
o Was necessary to address D.C.’s argument that “bear” was a militaristic term
o Court: Nope, can walk around with it
o Explored the historical meaning of bear arms
• Historical meaning interpretation
o Early state constitutions
 Virtually all early constitution were interpreted to secure the 2A outside of the home
 Limiting to the home is a modern policy concern, not historically backed
• Heller said the interest in self-defense was “most acute”, “most notable” in the home
o Wouldn’t use such language if the home was the only place
o True of other Amendments as well (such as 1st and 4th)
 Home additionally protected
 But none would argue there’s no 1A or 4A outside of the home
• State of Oregon, in 1980 (Supreme Court) held that a billy club was protected by the state Keep and Bear Arms provision. That was in his home.
o In a second case, it was out in public
o Supreme Court rejected the geographic limitation argument, other than the state’s borders
• No reason (and no evidence), then, that the court limited to the home
• Court said there are exceptions that prove the rule
o No “sensitive place”
 This is unclear, will be litigated
o Some places are too sensitive, so that must mean some places aren’t so sensitive
• Court also addressed two historical limitations
o Traditionally, states have been allowed to ban the carrying of concealed guns
o Robertson v. Baldwin – Historical prohibition
o But the Court cited a number of state courts, and all of those cases explained the reason the concealed carry was banned was because in those circumstances, it was a regulation on the manner of carrying the gun
o Decisions said concealed must mean sneaky, dishonest, etc.
o In that time, so-called “virtuous” carried openly
o Today, a different feeling
 Many pro-gun states prohibit open carry
o In today’s society, concealed carry is not seen as dangerous or scary
 Open carry is seen as provocative, controversial
o Gura:
 We don’t argue specifically for open or concealed, only that we are entitled to carry a gun for self-defense. State can regulate the manner.
• Peterson v. Martinez – 10th Circuit
o Plaintiff, resident of Washington State, wants to be able to carry in Denver
o Denver requires a CHL
 Not issued to non-residents
 Open carry not allowed
 This leaves residents with no options
o That panel said open carry was secured, concealed was not
 Gura disagrees
• Other exception in Heller
o Historical prohibition on “dangerous and unusual weapons”
o Opponents say this refers to a “type of gun”
o Whether or not the language relates to a category of arms is debatable
o However, in every single source, it’s been understood historically as if there’s something about the person’s behavior that terrifies the public
o No source has read the prohibition to eliminate the right Io keep and bear arms
o Another clue in Heller- They can regulate how you carry your gun, but the mere carrying of a gun by itself regardless of if others find that ‘scary”
• That’s where we’re at on the carrying of guns
• Most frequently arises in the handful (literally) where you are only allowed a license to carry if the licensing authority determines you have a “good and substantial” reason
o Discretionary qualifications
o A fair number of cases ( a number litigated by Gura ) attack these qualifications
o Unlawful “prior restraint” is not permissible on a Constitutional right
o If the government wants to license a right, standards have to be narrowly defined, specific, with no room for fact-findings or other subjective characteristics
o Time and time again, licensing provisions are stricken down if too much discretion
 Arises often in First Amendment
• Parade permits, demonstration permits, etc.
o Prior restraint doctrines describe all Constitutional rights, not just 1A
• Woolard v. Sheridan, U.S. District Court – Maryland
o Court struck down Maryland’s “good and substantial reason” doctrine
o Judge adopted alternative to prior restraints
 That Constitutional requires were not satisfied
o Court applied intermediate scrutiny
 No substantial fit between state interest in preventing crime and “rationing” permits
o Judge used the language of prior restraint when he said “the person who wishes to bear arms does not need to show good and substantial reason, the fact that it’s in the Constitution is enough”
 Gura would argue that this is a prior restraint argument
 If you have a right to do something, you don’t have to prove it
o State has indicated it will file notice of appeal
• Courts that have refused to give relief has said the 2A is limited to the home, or even have avoided interpreting the Constitutional issue
o Gura: Wrong, in terms of where the court’s duty lies
 SCOTUS is not a court of first resort, lower courts ought to do work to develop the law, because it’s their job
• Q & A Session
o Q: There are “certain special places” you can’t carry guns, not necessarily defined, what about private places like an individual’s home? Could I require you to disarm yourself?
o A: Generally, that’s true. Some places guns are off limits, most places we agree on. Airports. I’m not filing that lawsuit. Court mentioned presumptively off-limits places to be schools and government buildings. Gura thinks that’s too broad. What about graduate student housing? Military members with families. That’s being litigated currently. SCOTUS didn’t tell us how. Private property, the Constitution generally does not apply. Most public businesses, probably not. However, there are laws for public accommodation in places like restaurants, etc. Can’t discriminate. If public interest it in self-defense and the right to carry a gun, rules might contravene public interest. Most private places, though, no Constitutional application
o Q: Distinction between kinds of weapon. Difference between AK-47 and a pistol?
o A: That will definitely have to be fleshed out. Not every place is going to the same. Some types of speech is not appropriate in some places but fine in others. Doesn’t mean the speech isn’t protected. Hunting, for instance, a rifle might be carried that would make less sense in Central Park. Parks are a good example. Even with the First Amendment, not all parks are the same. Hiking in the middle of nowhere, in an area with drug smuggling and crime on the southern border, might be able to have a lot more firepower there than other places. Sometimes it’s going to be a factual determination, but in terms of what kind of arms are protected, Heller gave broad protection. All guns are arms, but there’s other arms as well. Cases involving knives and nunchucks currently. Gentleman in New York challenging under Second Amendment for nunchucks. With respect to arms, whether they be firearms or something else, the Heller opinion gave us a test. Similar to 1A or 4A categorical questions that identify “speech” and “protected speech”. Heller said an arm is something you have on your person for purposes of confrontation. Excludes nuclear missiles, battleships, aircraft carriers. Second Amendment reflects the idea that arms will be in common use. Arms used commonly were the backbone of the militia system. If reporting for militia duty, you were supposed to bring your own gun. They didn’t buy guns to go fight for the government, they bought them because they used them for private purposes, and they brought them to militia duty. It is not important to this test if the gun is used for crime. Court notes that handguns have widespread criminal application, but it’s also the preferred arm for law-abiding citizens exercising the lawful right of self-defense. It has some criminal uses. So what? Gura thinks it’s a very broad standard. Current litigation involving “assault weapons”, Court agreed that assault weapons are very common, but the Court applied a balancing test to uphold the law. Gura thinks the balancing test was In error. Wilson challenges Illinois assault weapons ban, and there will probably be more. Gura thinks assault weapons bans are unconstitutional, and they’re in widespread, lawful use and not often used by criminals
o Q: I understand Constitutional protections, but what about advances our forefathers could not anticipate. Not muskets, and pistols, etc.
o A: True generally of the Constitution. Our Constitution is not technologically limited. Founders could not have imagined the internet, broadcasting, Scientology, Mormonism. All those things are protected. It’s true also in respect to what the government can to do you. Kylo case dealing with search and seizure – could you have a helicopter with FLIR flying over your home – Court said no, that’s a violation of your privacy, even if the tech was new. Framers couldn’t have imagined al-Qeuda and drug cartels. McDonald rejected that idea completely. There’s always the idea that times have changed, things are too dangerous, and we should abandon the Constitution, but we don’t do that. If there’s a big enough change, the Constitution gives us a power to amend the Constitution. We don’t limit freedom of the press to 1790s printing presses, etc. We don’t have technological limitations on the 2A or any other amendment
o Q: The argument that having guns is a protection from government, is that made in any of the cases?
o A: That argument was made forcefully in Heller, and Heller acknowledged that argument very briefly (Scalia says they’re better able to resist tyranny). Other courts have dealt with It as well, referred to as a “doomsday provision”, government no longer stands for election, courts cannot have their orders enforce (Judge Kyzinski). The reason we don’t see it a lot is that there’s not a lot of litigating against it. If there’s a tyrannical government, it won’t be confronted in the government’s court. Interesting that other side complains about it. They call it the “insurrectionist” theory, and accuse my colleagues and I of trying to overthrow the government. I don’t think anything’s wrong with this country that can’t be fixed through more litigation [laughter]. People who want to own a gun are not interesting in overthrowing the government, but yes, if something were to go terribly wrong, and we must resist a different government than now, that’s a good idea. History gives us many examples. American Revolution was one of them. Does the other side condemn that “insurrection”.
o Q: Everyone in the nation with an AK-47 could not shoot down an F-22. Technologically limited.
o A: No way to test that. And we don’t say a constitutional right should be limited because it’s impractical. We don’t take away your right to vote because your candidate might lose. Likewise, if in the future, there was a need to resist a tyrannical force. Warsaw ghetto and other small, ineffective forces in history have decisively won battles. It’s harsh, but Iraq and Afghanistan have effectively held the U.S. armed forces with I.E.D.s and firearms. I don’t think a lot of disasters would have occurred (Rwanda, Holocaust, Cambodia) if the victim populations were heavily armed with basic firearms
o Q: It seems Heller makes clear that criminal “prohibited possession” statutes aren’t touched. Is there any possibility of criminal statutes being eroded
o A: I hope it will effect it, there’s a lot of cases going on right now. First off, when people talk of the “felon ban”, we think of murderers, rapists, etc. That’s uncontroversial. Domestic violence the same, uncontroversial generally. But those laws have a broad application. Schrader case, to be filed next month. Circumstances, Gura’s client was in the Navy in the 1960s, and got into a fight with some gang at a bar, and a short time later he encountered an assailant, and a fight was broken up by an officer. Client was charged with common law misdemeanor simple assault and battery. Paid $100 at police department. Suddenly, 40 years later, he’s a prohibited person, because prohibited persons applied to any crime where the penalty COULD have been 2+ years. Since a common law crime with no statutory max, government says he’s a prohibited person. History does not ever show misdemeanants being disarmed. In Massachusetts, a person with 1 DUI 10 years ago can be prohibited from ever having a fun. Federal law lets you buy long guns out of state, but not handguns. Why? Severe interruption of national market.