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Old May 24, 2012, 11:31 AM   #150
Al Norris
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,549
Now that I've had a good nights sleep, got my first few cups of coffee down, allow me to highlight a few items from both briefs.

The brief for Moore has finally shown up. What follows is the opening summary of Alan Gura's argument.


Much, if not most of the material submitted by Defendants and their amici has already been anticipated—and fully addressed—in Plaintiffs’ opening brief. The remainder is clearly foreclosed by circuit and Supreme Court precedent.

At bottom, Defendants and their amici simply cannot refute the plain fact that the right to “bear” arms, as historically understood in this country, includes the right to carry handguns for defensive purposes outside one’s home. That right is the starting point of any legislative program designed to regulate the right in the interest of public safety—but it is the end of Defendants’ total prohibition on bearing arms.

Because the right to carry defensive arms outside the home is within the Second Amendment’s original public meaning, and as “the Second Amendment right is fully applicable to the States,” McDonald v. City of Chicago, 130 S. Ct. 3020, 3026 (2010), Defendants’ policy choice to totally prohibit the public carrying of firearms is “off the table.” District of Columbia v. Heller, 554 U.S. 570, 636 (2008).

The statistical debate, though interesting, is entirely irrelevant. It does not matter whether the people’s policy choice is alleged to be unwise or outdated. This Court cannot utilize means-ends scrutiny—a mechanism for weighing a regulation against a right—to determine whether a right exists in the first place. To the extent any level of scrutiny could be applied to analyze a complete prohibition of a constitutional right, the standard of review is strict scrutiny, or the “not quite” strict scrutiny used in Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011).
Mr. Gura then gets to the meat of his argument by first reminding the Court that in their en banc decision in Skoien that even they noted that 2A rights outside the home were "left open" by the SCOTUS. Then he quotes Justice Alito's opening statement in McDonald.
(I)n (Heller), we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense, and we struck down a District of Columbia law that banned the possession of handguns in the home.
Gura then recites what I (and many others) have said from the beginning: "Self-defense, not home possession, is the 'central component of the right itself.'"

In case you are not aware, the Brady's have filed 2 amici briefs for various groups; LCAV has filed 2 amici briefs for various groups; the City of Chicago has filed an amicus brief as did the District of Columbia.

Gura, in his final reply, deals with them all, by refuting each and every one of these briefs and their claims.

While Gura dealt majorly with all the bogus stats, thrown about by the defendants and their amici, or that the State was merely regulating and not prohibiting the exercise of the right, in the home, NRA attorney Charles Cooper in his reply brief (Shepard), deals with the (once again) raised spectre of the collective militia theory or that the right was not a right to self defense.

This two-pronged defense makes it absolutely clear that the two sides (NRA v. SAF) have in fact collaborated.

Just as Alan Gura has gone into explicit detail on the idea that the right to bear arms for self defense in public, is not outside the core of the right, Cooper goes into explicit detail showing that regulation does not mean the total prohibition of the right, or that the right was limited only to the confines of one's property.

Speaking to the interests of the State, Cooper says this:

The State’s defense fails at the threshold, for the interest it asserts—“preventing the discharge of firearms in public,” State Br. 38—is not, standing alone, an important one. Whether or not gun-fire is harmful or beneficial depends on the circumstances. By seeking to prevent public discharge of firearms regardless of the circumstances, the State equates criminal, malicious discharges with discharges that are responsible and justified and perhaps life saving. It essentially values the health and safety of criminals, whose firearm discharges are highly unlikely to be prevented by the State’s carriage ban, over that of innocent victims, whose are.
It is finally written: State bans on carry are no more than the State saying that either the entire public is criminal in nature, or that it values the criminal element more than its law abiding citizens.

Charles Cooper goes into great detail on this aspect of "public safety" and the erroneous conclusions of disarming its citizens. The only "blood in the streets" will be that of the citizens. Protecting the criminal, at the expense of the law abiding citizen, is not a "public safety" issue.

Both briefs overlap in some areas, but the overall thrust is to use both briefs to refute the contentions all of the various amici of the State and the State itself.

Alan Gura makes his final conclusion:

The judgment below should be reversed, and the case remanded with instructions to enter a permanent injunction consistent with Plaintiffs’ prayer for relief.
This is shorthand for what Charles Cooper asks:


In the alternative, the State asks for a “remand to permit the district courts in the first instance to make the factual findings necessary to determine whether the State can demonstrate a sufficient fit between the challenged statutes and their public-safety purpose.” State Br. 52. No remand is necessary. “A fact that goes to the reasonableness of a rule or other enactment is a classic example of a legislative fact.” Menora v. Illinois High Sch. Ass’n, 683 F.2d 1030, 1036 (7th Cir. 1982). Judicial consideration of legislative facts is not limited by “any formal requirements of notice other than those already inherent in affording opportunity to hear and be heard and exchanging briefs,” nor by “any requirement of formal findings at any level.” FED. R. EVID. 201, 1972 advisory committee note. The State has had an opportunity to be heard, and it does not suggest that it has held anything back in its presentation to this Court. The practical result of a remand for further proceedings would be to delay resolution both of this case and the Moore case to allow for proceedings before two different district courts, only to end up back before this Court exercising “plenary” review of any findings of legislative facts entered below. See Free v. Peters, 12 F.3d 700, 706 (7th Cir. 1993). This Court should forego such a pointless exercise and decide this case now.


This Court should REVERSE the judgment below granting the State’s motion to dismiss, and REMAND with instructions to grant Plaintiffs’ motion for summary judgment and to enter a permanent injunction against enforcement of the challenged statutes. Alternatively, should the Court decide to remand the case for further proceedings, it should order the district court to enter a preliminary injunction against enforcement of the challenged statutes pending final judgment.
Both briefs are excellent reads.
Attached Files
File Type: pdf Moore CA7 Appellant Reply Brief.pdf (294.1 KB, 9 views)
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