The 2nd Amendment As A Normal Right - Alan Gura

[Curmudgeon]

It's about 6 months old but I just found this...

Harvard Law Review Forum

The Second Amendment as a Normal Right

Ruling out ad hoc interest-balancing

Commentary by Alan Gura


Apr 11, 2014
127 Harv. L. Rev. F. 223


On February 13, 2014, just in time for Valentine’s Day, the Ninth Circuit expressed its love for constitutional order by firing an arrow through the heart of California’s arbitrary handgun carry licensing scheme. The court’s decision in Peruta v. County of San Diego1 effectively struck down the Golden State’s requirement that individuals wishing to carry a handgun in public for self-defense demonstrate “good cause”2 to exercise what is, in fact, a fundamental constitutional right.3


Not surprisingly, Peruta sparked significant debate. Forty-four states already allow responsible adults to carry handguns for self-defense, openly or concealed, absent some specific reason to disarm them. But California — America’s media and cultural capital4 and home to over a tenth of the nation’s population — stands as a significant outlier. The court all but invited certiorari review relating to the publicly contentious topic of carrying handguns for self-defense, punctuating its historical exegesis of the right to bear arms with pointed criticism of Second, Third, and Fourth Circuit opinions that had upheld substantially identical “proper cause,” “justifiable need,” and “good and substantial reason” requirements, respectively.5 Instead, the Ninth Circuit followed the Seventh Circuit, which had struck down Illinois’ prohibition on the carrying of defensive handguns.6


To be sure, Peruta fully deserves the attention it has attracted for its handling of the handgun carry issue. Were it notable for nothing else, the case would still stand as a landmark opinion. But Peruta may prove vastly more consequential than whatever impact it may have on an individual’s ability to carry handguns as a precaution against violent crime. Peruta’s methodology is the real story. Contrary to the prevailing approach, the Ninth Circuit took seriously the question of what conduct the Framers understood the Second Amendment to protect. It did not, as have other courts, second-guess the Framers by refusing to question modern political outcomes.


The Heller7 majority and Justice Thomas’s decisive McDonald8 concurrence concerned themselves primarily with the constitutional text’s original public meaning in light of established American tradition. In Heller, text and history pointed to the Second Amendment’s codification of an individual right to bear arms, the central purpose of which, Heller declared repeatedly, is self-defense.9 Accordingly, Heller stridently rejected Justice Breyer’s interest-balancing approach.10 Washington, D.C.’s armed home self-defense ban could not survive a constitutional right securing the self-defense interest in arms, and since handguns are “arms,” neither could the city’s handgun ban.


But just as the struggle for racial equality did not end with Brown v. Board of Education,11 the effort to establish the Second Amendment as a normal part of the Bill of Rights was never going to unfurl a “Mission Accomplished” banner just because the Supreme Court declared that the Second Amendment was a fundamental individual right on par with the others. Many lower court judges have simply not reconciled themselves to Heller and McDonald, and can be counted upon to resist rather than implement these decisions. Reviewing the lower courts’ post-Heller Second Amendment output, Professor Allen Rostron, a former Brady Center Senior Staff Attorney, had good reason to crow that “Justice Breyer’s approach” — a dissenting view on today’s Supreme Court — “appears headed for an unexpected triumph.”12 “[T]he lower court decisions and the analytical approach that has begun to crystallize in them reflect Justice Breyer’s sentiments about Second Amendment claims far more than those of Justice Scalia or the other members of the Court who formed the majorities in Heller and McDonald.”13

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[American1776]

Alan Gura is the real deal, and I'm glad to have a brilliant young guy like him on our side of the issue.

If anyone can advance our rights from the legal side, he's the one to do it.

[Curmudgeon]

Alan Gura is the real deal, and I'm glad to have a brilliant young guy like him on our side of the issue.

If anyone can advance our rights from the legal side, he's the one to do it.

In point of fact, he has!

[American1776]

In point of fact, he has!

Yes, McDonald and Heller.

In proper context, I'm thinking about NJ, MD, and NY as the next ones on Gura's list. I hope he's successful.

[Curmudgeon]

Yes, McDonald and Heller.

In proper context, I'm thinking about NJ, MD, and NY as the next ones on Gura's list. I hope he's successful.

I think he's been busier than that. You can also credit him with winning Palmer V DC recently, although of course that is in appeal.

I have tried to quickly Google a list of cases in which he has been involved, and his name is so all over the web I'm not coming up with anything clean.

[Yellowfin]

His work is far and wide, that's for sure. What we have learned from his cases that didn't produce a win is that we need to take the law schools away from the anti gun side.