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Old January 9, 2013, 06:00 PM   #84
Al Norris
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,541
Alan Gura offers the Court 2 questions. The first question is the most important one:

1. Does the Second Amendment secure a right to carry handguns for self-defense outside the home?
If this question is answered in the affirmative, then the next question becomes the crux of the holding:

2. Do state officials violate the Second Amendment by denying handgun carry licenses to responsible, law-abiding adults for lack of “proper cause” to bear arms for self-defense?
"Proper cause," good and substantial," "good cause," these (and similar statements) are all the reasons that "May Issue" States have used to deny the right to its citizens. A grant of cert and an opinion in Gura's favor, will affect every State that does not use objective criteria in determining who may lawfully carry and who may not.

Alan Gura starts right out of the gate, with:

A “right” that may not be exercised absent a government official’s discretionary determination that an individual has “proper cause” to exercise it, is not much of a right.
In various parts, Gura introduces the prior restraint argument (to keep that argument alive, I suspect), such as this:

But for purposes of certiorari, it suffices to observe that Petitioners’ “crude” understanding of the Second Amendment is informed by Justice Alito’s opinion in McDonald, which rejected the argument “that the Second Amendment differs from all of the other provisions of the Bill of Rights because it concerns the right to possess a deadly implement and thus has implications for public safety.” McDonald, 130 S. Ct. at 3045.
While there are quite a few good points in this petition, I believe the following paragraph is aimed directly at C.J. Roberts:

The lower court’s reliance upon NFIB is misplaced. Whatever else the Affordable Care Act concerned, it did not implicate a fundamental, enumerated right to refrain from buying health insurance. Stating that Congress is presumed to have acted within an enumerated grant of legislative power – a “permissive reading of these powers,” NFIB, 132 S. Ct. at 2579 – is hardly the same as declaring that legislatures are presumed to honor individual rights where those rights are profoundly impacted. NFIB overruled neither the constitutional doctrine announced in Carolene Product’s fourth footnote, nor Heller’s application of that doctrine to the Second Amendment.
Which I think is a good reminder.

Additionally, I also like the ending:

Respectfully, this Court’s decisions in Heller and McDonald, like the Second Amendment to which they gave operative force, were not published with an asterisk. “[W]hen a lower court perceives a pronounced new doctrinal trend in Supreme Court decisions, it is its duty, cautiously to be sure, to follow not to resist it.” Perkins v. Endicott Johnson Corp., 128 F.2d 208, 218 (2d Cir. 1942), aff ’d, 317 U.S. 501 (1943) (footnotes omitted).

This Court should answer the lower courts’ recurring requests for additional guidance in this area, and resolve the splits of authority regarding the essential question of the Second Amendment’s application in public settings.
Now, if things go smoothly, we should know by March or April if the Court will grant cert. No chance of hearing the case until OPct. or Nov. of the next session. However, if cert is granted, it will likely put a hold on every single 2A case that we have been following.
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