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Old February 9, 2012, 12:22 AM   #1
Al Norris
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,548
Hightower v. Boston

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):

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:

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.
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