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Old August 24, 2012, 08:07 AM   #57
Al Norris
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,540
The gentleman in NY has posted more on the Kachalsky orals (see the link in my previous post). He first gives this disclaimer:

Originally Posted by .357MagNYC
Just to clarify, what I did was take about 10 pages of notes where I wrote down the gist of what everyone said. Originally, I copied and posted the whole thing here, but then realized that might be a problem since I was basically misquoting everyone.

Instead, I'll try to keep posting summaries of what was said from time to time. If anyone knows how to get the transcript from a Second Circuit oral argument, please let me know. I called the court clerk today, was transferred to a voice mail, left a message, and will probably never hear back from the person I called.
Then in a series of 3 posts, he writes:

Things started out on a somewhat humorous note, which makes me think the judges might be sympathetic to our cause.

Judge Wesley started out asking Alan Gura if it would be constitutionally protected to carry a handgun, just because. Not for self-defense, but just because a person liked the feel of a "Colt .45" and wanted to carry one. Gura said that would still be a protected interest, as would carrying for target practice or hunting.

Judge Lynch asked if there's a right to shoot guns in the air to celebrate Cinco de Mayo. Gura responded that states can regulate the discharging of firearms.

Judge Lynch then asked if the class of protected arms includes shoulder-mounted anti-aircraft missiles. Gura responded that those are not protected under Heller's common-use test.

Judge Lynch then asked what would happen if someone stood in the street in NYC with a rifle or shotgun, and Gura said that person would probably be arrested for disturbing the peace or something. Gura added that Heller specifically said that the Second Amendment did not allow people to carry any arm whatsoever for any purpose whatsoever.

Next, in what will probably be an essential point in the decision, Judge Lynch said something to the effect of, "So the legislature can't say no to handguns, but only allow people to carry long guns." Gura responded that Heller said that the handgun is the quintessential weapon for self-defense chosen by Americans.

Judge Katzmann then got to the core of the question, and asked why the state couldn't have a regulation stating that you need a documented threat in order to get a permit (so that individuals who can't show a recurrent threat wouldn't get licenses).

Gura replied that people are often raped or murdered without any previous threats against them. He said that the 2A protects the right to be armed and ready in case of a threat.

Judge Wesley (who admitted he's an avid hunter) then asked if the 2A would change when public preferences change. Heller says that handguns are protected because they're America's weapon of choice--does that mean handguns can't be regulated except under strict scrutiny?

Gura answered that the 2A has always meant that weapons commonly used for lawful purposes are protected.

There was then a historical discussion with Judge Wesley, where Gura said that the Bill of Rights is not technologically hind-bound to the technology available in 1778.

In another key moment, Judge Wesley then said something to the effect of, "Heller makes a strong statement in favor of your view that the 2A extends beyond the home." He then asked Gura why he concedes that the state would have a legitimate interest in prohibiting concealed carry.

Gura responded that the SCOTUS is deferential to the states on that one, that states can regulate the manner of carrying, and that there's a historical notion that concealment is dangerous and sneaky.

Continuing with the discussion of concealed vs. open carry, Judge Wesley then asked why the government didn't have the same interest in banning both forms of carry, and why must the state's citizens suffer one of the two burdens to public safety (either through concealed or open carry).

Gura answered that the state's interest stops at the point where the right is completely destroyed. Citizens must enjoy the freedom in one manner or the other.

... [T]he next topic discussed were safe-storage laws, which Gura said would probably survive scrutiny.

Next, on the topic of ammo capacity limits, Judge Lynch asked if it wouldn't make sense to leave those regulations up to the legislature, rather than to judges who had no clue about guns. When Judge Lynch asked what competence the courts have to rule in these matters, Gura replied that the job of the courts is to determine if the regulations are constitutional, and referred back to common use for traditional lawful purposes with reference to ammo capacity.

There was then a discussion in which Judge Lynch said that Gura's argument isn't really that licensing authorities have unbridled discretion, but that anyone is entitled to carry because they're American. Judge Wesley then chimed in and said that Gura's argument is that NY's heightened standard of self-defense is not enough to pass constitutional muster.

Judge Wesley then talked with Gura about differences between the home and in public. Judge Wesley acknowledged that most crimes are committed with illegal guns. Gura acknowledged that the interest in self-defense is most acute in the home.

Judge Wesley then went on to ask about the analogy to the 1st Amendment, which seems problematic since the 2A has far more immediate deadly effects. Gura pointed to the part in McDonald where the Court states that the 4th, 5th, and 6th Amendment rights all have dangerous effects, since they result in the release of dangerous criminals into society.

Judge Lynch then added that, even under the 1st Amendment, all kinds of speech can cause harm, but that courts have always responded that that's the price we pay for our 1st Amendment rights. He then said something to the effect of, "maybe a few dead bodies is the price we pay for the Second Amendment."

Gura said that the states could address those concerns through time, place, and manner restrictions.

Judge Lynch then asked about laws banning guns from within 100 feet of schools, and Gura said that would amount to an all-out ban in places like NYC. Judge Lynch also mentioned restrictions on possession within 100 feet of schools, churches, abortion clinics, daycare centers, and bars. He said something to the effect of, "if you can't carry within 100 feet of an airport, and there are too many airports, then you have no right, correct?" Gura added that there's no problem with state laws banning possession of a firearm while intoxicated, and stressed that this lawsuit is not the last word on permissible restraints.

In closing, Gura said that this law applies everywhere in NYS and places a substantial burden on the 2A right, since people can't walk outside their own door with a gun without a license, which they can't have without proper cause.

Next it was the State's turn to argue. Gura got a chance to respond at the end.
I will be checking the link to gather what else he has to report. It is obvious that .357MagNYC takes much better notes than I. I applaud him for his completeness!

Esqappellate, a retired appellate attorney and a member of MDShooters, has used his ECF access to order the audio of the orals. I hope to bring that here, when it is available.
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