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Old March 27, 2013, 11:36 PM   #135
Al Norris
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,524
"Testier?" I think he's been waiting for this!

Right out of the stall, Alan Gura challenges the Court with their own judicial integrity.


Respondents mostly ignore conflicts between the lower court’s opinion and this Court’s precedent, instead reading District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 130 S. Ct. 3020 (2010) as narrowly limited to their facts. Moreover, Respondents join the lower court’s endorsement of alternative historical narratives that this Court rejected. These are arguments for granting, not denying, review.

Respondents also err in disputing the plain existence of conflicts among the lower courts, and seriously misconstrue the Petitioners’ claims.

But most critically, Respondents err in claiming that this Court can wait to address the problems manifested below. Developments since the Petition’s filing continue to prove that this decision, if left unchecked, will accelerate the lower courts’ resistance to Heller and McDonald.

This Court presumably decided Heller and McDonald as it did with the expectation that lower courts would implement the Second Amendment as a normal, legitimate part of the Bill of Rights. Unfortunately, the opinion below confirms the emergence of a different reality in the absence of this Court’s intervention.
There are many good quotes in this reply. among them are:

In modern popular usage, the word “concealed” has become appended to the word “carry,” such that “concealed carry” is synonymous and used interchangeably with the concept of “carry.” Respondents thus present the common – and erroneous – logic:
1. There is no right to carry concealed handguns. Opp. at 10 & n.3;

2. Petitioners have not specifically argued that they should carry handguns openly, id. at 11, thus

3. Petitioners lose. Q.E.D.
Then we have this revelation (my emphasis):
Were this petition granted, this case would be heard and decided in the October, 2013 Term, as would a forthcoming petition arising from Woollard v. Gallagher, No. 12-1437, 2013 U.S. App. LEXIS 5617 (4th Cir. Mar. 21, 2013).
So it appears that there will be no request for rehearing en banc. Gura, it seems, is writing for the petition for a grant of cert, as we debate. The real "zinger" in this brief comes with the closing paragraph in the Conclusion. It is a direct challenge to the Court to slap down the lower courts for disregarding this Court's own rulings:

The only thing worse than explicitly refusing to enforce an enumerated constitutional right would be to declare a right “fundamental” while standing aside as lower courts render it worthless. Few outcomes could promote as much cynicism about our legal system. If this Court is unprepared to overrule Heller, it should reverse decisions such as that entered by the lower court here.
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