Category Archives: Alan Gura is totally awesome

Total failure to even identify a valid objective

Alan Gura and company have a new brief in the ongoing Ezell case in which Chicago required range training to get a gun license and then banned ranges.

Chicago’s arguments are so idiotic and insulting that it’s going to be a pretty open-and-shut case. There are so many money quotes that you really have to read it, but here’s one of my favorites (emphasis added):

Scudiero testified that she has never been to a gun range, has never read or studied any literature about gun ranges, has no experience or education with either the structure or operation of gun ranges, and has never investigated gun ranges for zoning purposes. App. 95, 104.

[…]

Nonetheless, the lower court allowed Scudiero to testify as to what she “imagine[s]” happens at a gun range. App. 96-97. Based on this imagination, Scudiero opined that gun ranges should be zoned as an “intense” use, similar to taverns, rock crushing facilities, salvage yards, incinerators, drive-through facilities, and adult establishments. Specifically, Scudiero opined gun ranges belong in manufacturing districts, but even then, only on a case-by-case special use basis. App. 98-101. However, Scudiero had no knowledge of whether gun ranges emit noise or emissions of any kind. App. 105-06.

And another great one:

The end result in this case would be the same under either strict or intermediate scrutiny, which requires that there be a “strong showing” that the regulation is “substantially related to an important governmental objective.” Skoien, 614 F.3d at 641 (citations omitted). Often times, as in Skoien, Yancey, or Williams, the governmental objective in gun regulation is not elusive, leaving courts to struggle with difficult questions of balancing and breadth. What makes this an unusually clear Second Amendment case is the government’s total failure to even identify a valid objective. Defendant’s attorney advised the City Council that it could do whatever it believed to be “reasonable” regarding gun ranges, and so the City Council simply banned ranges.

One more zinger:

Also unavailing is the claim that ranges can be banned because regulating them would overburden Defendant. Perhaps the people should be thankful Chicago does not find the “need” to regulate bookstores and churches too burdensome. The court below did not quite rely upon this argument, ruling only that the absence of regulation rendered it unsafe to enjoin the ban. It nonetheless merits mention that a “right” entitles individuals to do something, and is not dependent on the graces of the government. The notion that the government may ban outright whatever it finds too difficult to regulate is not a constitutional doctrine. If gun ranges are constitutionally protected, Defendant’s wholly optional regulatory costs are irrelevant. People do not lose their rights because the government decides it is too expensive to regulate or otherwise accommodate them.

Reporting from the 25th annual Gun Rights Policy Conference

I just got back from the panels of the 25th annual Gun Rights Policy Conference, and let me tell you, I sure am jazzed. I arrived early in the morning and was greeted by a handsome M1 Garand being raffled off by the Golden State Second Amendment Council (who I really need to join):

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Needless to say, I entered the drawing!

The conference started off with Alan Gottlieb and his wife Julianne discussing the importance of unity among pro-rights groups and of not sitting on our laurels just because we have two major SCOTUS victories. I heartily agree.

One pleasant surprise was that each attendee was given a ton of books, all for free! Among them are Paxton Quigley’s Armed and Female, John Lott’s Straight Shooting, and Alan Gottlieb’s America Fights Back. These are not works of fluff published by nobodies.

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John Lott himself (right) was present in fact, and he was there trumpeting his groundbreaking work in criminology to statistically disprove anti-rights myths over and over again. His speech was a bit dry, but he’s an economist so I can’t blame him too much, and besides, it was very informative!

Among the more bombastic speakers was Jim Wallace, a lobbyist with the unenviable task of promoting firearms and freedom to the Massachusetts state legislature. He told a hilarious story of how he cowed the legislature by asking them to indicate how many of them thought that only the government should have firearms (most did) and then asking them what they thought of the at-the-time-in-power Bush administration (it was not polite). This delighted me because I’ve used this trick on liberal friends and family before and heads always explode!

In fact, back before I was a guns and freedom activist, my extremely liberal father once confided in me that he was considering getting a gun out of fear of government thugs enforcing the PATRIOT act against him and his extremely liberal publications. At the time I was shocked and appalled but in retrospect I’m terribly proud of his momentary breaking out of the anti-gun state-is-god box and I wish I had been in a position to help him along rather than disapprove.

I regrettably forgot to snap a photo of Mr. Wallace. Maybe that tells you a little bit about how enthralled I was by his speech!

Alan Gura was of course awesome:

Sorry for the shakycam effect. After I shot these videos I realized that a more stable platform was needed so I cut some stickers up into strips and used them to secure my iPhone to a pile of books. It worked like a charm!

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Eugene Volokh (left) spoke as well and I was really excited to see him, being a big fan of his blog The Volokh Conspiracy. Mr. Volokh ended up being a voice of reason but was therefore hardly telling us what we wanted to hear! His primary argument was that the second amendment will be treated like other amendments — that is to say, it will be found to be a good deal less absolute and off-limits than we would prefer. He pointed out the wide variety of permissible restrictions on such rights as the right to protest and speak, and suggested that even a licensing scheme could be constitutional given its legal acceptance in protests.

Volokh sort of ended up playing the part of the wet blanket. Much to the palpable disappointment of the audience, he included assault weapons bans in the list of likely constitutional gun laws, his reasoning being that banning them would not be found to substantially burden the core right of self-defense provided that other suitable weapons were still available.

Calguns’ Gene Hoffman, however, strenuously disagreed a few hours later, bringing up the excellent example of self-defense against mountain lions, pointing out that California police departments use AR-15s to dispatch such animals when they show up in cities, and that ranchers and other rural folks often encounter four-legged predators against which handguns would be poor choices. These seemed like very strong arguments to me, and I also think that Scalia’s “in common use” language would come into effect as well; in California at least there are over 500,000 bullet button-equipped ARs and AKs. I’m proud to have increased that number by one.

There’s just something about Gene Hoffman that makes you want to follow him. He has a natural leader’s personality and he’s unbelievably eloquent. Here, have a listen:

Don Kilmer also spoke a bit about some of his cases, like the now-famous Nordyke case in which Mr Kilmer was technically the first lawyer ever to have the second amendment incorporated against the states!

Finally, Alan Gura spoke again.

Then there was a free-form discussion. Kilmer, Hoffman, and Gura talked a lot about spurious arrests for possession of bullet button-equipped ARs in California (hint: if it happens to you shut up and call Calguns at 800-556-2109) and other immediate and near-future issues. I couldn’t help but feel optimistic.

I was super-excited to see Massad Ayoob. Back when I was just dipping my toes into the pro-gun waters, his books and articles guided me along. I fondly remember reading In The Gravest Extreme on a bus ride in New England three years ago and feeling the cogs turning in my head as he methodically explained things that made too much sense to deny.

Also, he has an awesome voice.

One slightly unsettling undercurrent I noticed was the pervasive sniping at the NRA. Everyone was mad that they folded on the DISCLOSE act. Gura was pissed that they’ve been trying to take credit for his victories and was actually quite passive-aggressive about it. Smaller organizations like GOA were generally miffed that the NRA wasn’t absolutist enough. And one guy was steamed that they didn’t endorse Libertarians, leading to by far the most awkward moment of the day when he presented this to Bob Barr—who is an NRA board member—and got a good 15 seconds of tense silence as a result.

Given that Alan Gottlieb and his wife Julianne introduced the conference with a plea for unity and cooperation among pro-rights groups, it was somewhat disappointing. I would really have liked to see more solidarity, especially considering that the NRA has done 100 times more than most of the complainants (I’m looking at you, GOA!). We should rally around our power players, not snap at their heels for being more important and influential than we are.

There were a ton more people who were all great in their own ways. Hearing Michael Boldin the tenth amendment guy ask us if we had as much courage as the pot smokers in California who are actively disobeying federal law en masse was something I don’t think I’ll ever forget, and Nikki Stallard’s impassioned defense of gays’ right to defense was really something to behold.

It was a wonderful set of panels. After 10 hours, I felt rejuvenated! It’s great to be surrounded by fellow freedom-lovers, and I really think we have dream teams working all throughout the country to attack statist nonsense on too many fronts to count.

Alan Gura, I love you

Alan Gura, on the subject of his latest victory:

The Second Amendment is itself a reasonable, common-sense gun law – it provides powerful security for a fundamental individual right. Governments contemplating gun regulations out of legitimate concern for public safety may occasionally be reminded of their limits by courts, but good faith actors should find today’s decision no more troubling than any other precedent effectuating basic constitutional limitations. On the other hand, politicians approaching gun regulation as a means of continuing their disagreement with the Constitution’s enumerated policy choice on the subject will discover that doing so carries a price taxpayers do not wish to spend – and ultimately achieves nothing.

We did it. We got it.

We won. Not through Privileges Or Immunities, but Due Process is pretty damn good. Reading it now.

Update:
It looks to me like we got strict scrutiny, too. On page 39 of Alito’s opinion:

Municipal respondents assert that, although most state constitutions protect firearms rights, state courts have held that these rights are subject to “interest-balancing” and have sustained a variety of restrictions. Brief for Municipal Respondents 23–31. In Heller, however, we expressly rejected the argument that the scope of the Second Amendment right should be determined by judicial interest balancing, 554 U. S., at ___–___ (slip op., at 62– 63), and this Court decades ago abandoned “the notion that the Fourteenth Amendment applies to the States only a watered-down, subjective version of the individual guarantees of the Bill of Rights,” Malloy, supra, at 10–11 (internal quotation marks omitted).

[…]

As we have noted, while [Justice Breyer’s] opinion in Heller recommended an interest-balancing test, the Court specifically rejected that suggestion. See supra, at 38–39. “The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.” Heller, supra, at ___ (slip op., at 62–63).

Update 2:
Gotta love Scalia’s typical pithiness:

JUSTICE STEVENS moves on to the “most basic” con­straint on subjectivity his theory offers: that he would “esche[w] attempts to provide any all-purpose, top-down, totalizing theory of ‘liberty.’” Post, at 22. The notion that the absence of a coherent theory of the Due Process Clause will somehow curtail judicial caprice is at war with reason. Indeterminacy means opportunity for courts to impose whatever rule they like; it is the problem, not the solution. The idea that interpretive pluralism would reduce courts’ ability to impose their will on the ignorant masses is not merely naïve, but absurd. If there are no right answers, there are no wrong answers either.

[…]

The next constraint JUSTICE STEVENS suggests is harder to evaluate. He describes as “an important tool for guiding judicial discretion” “sensitivity to the interaction between the intrinsic aspects of liberty and the practical realities of contemporary society.” Post, at 24. I cannot say whether that sensitivity will really guide judges because I have no idea what it is. Is it some sixth sense instilled in judges when they ascend to the bench? Or does it mean judges are more constrained when they agonize about the cosmic conflict between liberty and its potentially harmful conse­quences? Attempting to give the concept more precision, JUSTICE STEVENS explains that “sensitivity is an aspect of a deeper principle: the need to approach our work with humility and caution.” Ibid. Both traits are undeniably admirable, though what relation they bear to sensitivity is a mystery. But it makes no difference, for the first case JUSTICE STEVENS cites in support, see ibid., Casey, 505 U. S., at 849, dispels any illusion that he has a meaningful form of judicial modesty in mind.

[…]

In any event, the demise of watered-down incorporation, see ante, at 17– 19, means that we no longer subdivide Bill of Rights guarantees into their theoretical components, only some of which apply to the States. The First Amendment freedom of speech is incorporated—not the freedom to speak on Fridays, or to speak about philosophy.

My life would truly be complete…

…If I could have an iPhone lightsaber fight with Alan Gura like SayUncle did! Yes, I have a man crush on him the size of Montana. No, I don’t care!

That sounds like the most awesome story ever

I’m down for any lawyer story that involves guns, chariots, and Carthaginian war elephants! Sebastian points out that the teller of the story, Dave Hardy, is an intellectual giant in the RBKA movement. I believe it. I had the pleasure of meeting a few other ones last fall when I attended oral arguments for the en banc re-hearing of Nordyke vs. King:

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Don Kilmer, Alan Gura, and Don Kates.

They truly are towering pillars of genius. I feel blessed that we have such capable men defending every American’s rights.