Hightower v. Boston

[Al Norris]

It's time for it's own thread.

If you are not familiar with this case, I suggest you search the Current 2A Cases (#36 - post #3) thread (yes, you can search the individual threads): http://thefiringline.com/forums/showthread.php?t=416973

As I reported (in the linked thread, above), the opening brief at the 1st Circuit was filed.

Several times I have said that the whole thing at the District Courts was to develop the relevance of the right to bear arms; That the pleadings at District Court were not to that court at all, but to the Circuits and to the Supreme Court.

In the opening brief of Hightower v. Boston, at the 1st Circuit Court of Appeals, we see the culmination of developing this record (in the following quotes, I will be referring to the PDF page and not the document page).

Alan Gura starts off, in his Summary of the Argument with this (pp 34):

Americans plainly enjoy a fundamental right to publicly carry handguns for self-defense. The state may regulate the right to bear arms in any number of ways not relevant here, but the Supreme Court has already held, with reference to the Second Amendment, that “[a]t the time of the founding, as now, to ‘bear’ meant to ‘carry.’” District of Columbia v. Heller, 554 U.S. 570, 584 (2008) (citations omitted). Defendants can offer no alternative definition for the constitutional text, nor can they rebut the overwhelming weight of tradition and precedent that confirms Americans enjoy a fundamental right to carry arms for self-defense.

Because this a grant of summary judgment (and cross motions of summary judgment) to the defendant (MA), the standard of review is de novo, a Latin expression meaning "from the beginning."

Mr. Gura starts his formal argument and turns to the issue of standing and shows where the court below is just plain wrong on the law and facts (pp 37):

Hightower is not challenging what might happen to her were she to re-apply for a license; she is challenging what already was done to her. Hightower is not merely seeking declaratory relief; she is seeking an injunction, and a mandate that her property be returned.

And ripeness (pp 40-41):

If Hightower has a Second Amendment right to some form of carrying her gun in public for self-defense, she has a Second Amendment interest in an unrestricted Class A license. Defendants cannot deny Hightower’s right to carry a gun by creating only one type of over-inclusive license, and then relying on the license’s over-inclusive aspects to deny claims to its lesser-included, but constitutionally-protected features. The case is plainly ripe.

Having disposed of the issues of ripeness and standing, Mr. Gura then relentlessly hammers home the main dicta of Heller, that the core right is the right to carry for self defense. This starts with the following heading at pp 41:

III. THE SECOND AMENDMENT SECURES THE RIGHT TO CARRY ARMS IN PUBLIC FOR SELF-DEFENSE.

This continues through to the top of pp 62. Mr. Gura has covered most aspects of carry, whether it be openly or concealed and how the record before the court has the necessary historical precedence that Heller required of the lower courts (and that the lower courts have been ignoring).

In part IV of the brief (pp 62), Mr. Gura then begins his attack via the prior restraint argument (using 1A analogs). This sets up the laws as interpreted under MA statute.

Gura then addresses the MA "suitability" requirement (pp 69). This is also liberally to be interpreted towards any "may issue" system where the applicant must prove the need (NY, CA, MD, etc.):

“Suitability” is plainly among the impermissible “illusory ‘constraints’” amounting to “little more than a high-sounding ideal.” Lakewood, 486 U.S. at 769-70. Defendants’ balancing of an individuals’ self-defense “needs and the interests of the Boston police department,” JA 142, is highly subjective, and quite beside the point—the Second Amendment is not located amongst a Bill of Needs, it is part of our Bill of Rights. The general public is entitled to Second Amendment rights. The interest in self-defense the amendment secures is held by all.

On pp 76 of the pdf Gura attacks the anti-gun mentality of MA:

The right to self-defense at the Second Amendment’s core is enjoyed by everyone, not just those whom officials believe are more likely to require it, and the state cannot have a general interest in suppressing a fundamental right—even if some people deeply oppose the right’s existence.

After speaking to this Court's decision in Rehlander, Mr. Gura says (pp 85):

The time has arrived for Massachusetts to treat the right to keep and bear arms like the fundamental right that it is.

At this point, Mr. Gura then connects "Due Process" (14A) rights as being integral to 2A rights. Finally, at pp 85, we have the following conclusion:

The Second Amendment plainly secures a right to carry handguns for self-defense. Massachusetts has opted to regulate this right by allowing the licensed carrying of concealed handguns. It follows that such licensing must satisfy constitutional standards.

[The Statutes] discretionary aspect constitutes a classic form of unconstitutional prior restraint, conditioning the exercise of a fundamental right upon a licensing official’s unbridled discretion. It also fails to satisfy any means-ends level of scrutiny appropriate to the security of fundamental rights, as Defendants have no interest in preventing the exercise of constitutional rights—regardless of their opinions as to the right's utility—and they cannot predict when someone might need to exercise their right of self-defense.

And that, ladies and gentlemen, is how you approach a civil rights issue (the right to carry/bear arms). All the pieces are present in the lower court pleadings. It is here that it is all tied together.

Expect to see this several times (albeit in reworded format, specific to the laws being challenged) in the coming months, as the lessor courts yield to the Appellate Courts.

[CowTowner]

Thanks Al. I really do appreciate the way you break it all down to simple non-lawyer speak for us.

Expect to see this several times.......

Gosh, I really hope we do. And sooner rather than later.

[NJgunowner]

Ok, now we just need someone with deep pockets to challenge the "may issue" bs of NJ.

[tet4]

I think Gura is currently establishing in the court system the right to carry in public. Once that is done, I'm pretty sure there will be a wave of cases concerning may-issue, which will be fantastic to watch because I'm sure states like NJ will fight them and not settle. :-)

[CowTowner]

tet4, I agree. And California will also be one of those fighting. It will be interesting to see how this all plays out in the other Circuit Courts of Appeals.

[maestro pistolero]

This could get to be a gold mine for RKBA organizations. How totally fun.

[Armorer-at-Law]

And that, ladies and gentlemen, is how you approach a civil rights issue (the right to carry/bear arms).

Indeed!

[Al Norris]

Today, the State has filed its response.

And just what do the esteemed attorneys for the State of MA have to say?

"There is no right to carry in public, and even if there were, the State has an overriding authority to keep unsuitable people from carrying in public. Who is unsuitable? Why, those people that are irresponsible! And besides, the issue isn't ripe because Hightower never availed herself of any of the State sanctioned methods of redress."

And so on and so forth.

In two weeks, we will see the reply. I can hardly wait to see this one.

[Standing Wolf]

Thanks Al. I really do appreciate the way you break it all down to simple non-lawyer speak for us.

I second CowTowner's appreciation.

[Uncle Buck]

Nor did she reapply for a more restricted license, limited to weapons potentially covered by the Second Amendment to the United States Constitution

What, according to the State of Mass., are weapons suitable under the second amendment?

[CowTowner]

What, according to the State of Mass., are weapons suitable under the second amendment?

Uncle Buck, I'm glad you asked that question. I'm looking forward to reading the answer myself.

[maestro pistolero]

Since we still have a militia clause, I believe it, not the state of Massachusetts, will ultimately define the margins of which weapons are protected and for what purpose.

[Al Norris]

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.

[Aguila Blanca]

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).

OUCH!

Gura is not pulling his punches, is he?

[Al Norris]

No. He is at the appellate level and is going for the jugular.

[Spats McGee]

As always, thanks for keeping us posted, Al. It's a huge help for us. I have looked around and can't seem to find the Appellant's opening brief. Do you happen to know where I can find it?

[Al Norris]

We didn't have a separate thread, originally... So the opening brief was filed in the Current 2A Cases thread.

Here you go: http://thefiringline.com/forums/atta...chmentid=78490

[CowTowner]

OK, I tried to follow your link, Al. And that didn't work at all:

CowTowner, you do not have permission to access this page. This could be due to one of several reasons:

Your user account may not have sufficient privileges to access this page. If you are attempting to create a thread in the Gun Show forums, be sure to read the rules thread posted at or near the top of the forum. You need to meet a few criteria as shown in that thread before you are allowed to start a thread in the Gun Show. Are you trying to edit someone else's post, access administrative features or some other privileged system?
If you are trying to post, the administrator may have disabled your account, or it may be awaiting activation.

[Spats McGee]

I found it, CowTowner. Here: http://comm2a.org/images/PDFs/highto...peal_brief.pdf

Thanks again, Al.

[jimpeel]

DELETED

[CowTowner]

Thanks Spats!

[karcirate]

"This could get to be a gold mine for RKBA organizations. How totally fun."

Not exactly. Alan Gura spoke at my school, and while I was talking to him after his presentation it came out that he is not making a ton of money out of these lawsuits.

[Al Norris]

I don't have a clue as to why that link won't open the PDF for you, CowTowner.

For anyone else, here is the link to the actual post were it was attached: http://thefiringline.com/forums/show...29#post4949529

[Al Norris]

04/23/2012 CASE calendared: Wednesday, 06/06/2012 Boston, MA Panel Courtroom. Designation form due 05/07/2012. [11-2281] (LM)

The case has an Oral Argument date.

[Al Norris]

The MP3 (18MB) of the Hightower orals are out. http://www.ca1.uscourts.gov/files/audio/11-2281.mp3, although you may need to go here, http://www.ca1.uscourts.gov/files/audio/audiorss.php to get the file (near the bottom of the page).