Alan Gura may not be our savior

Alan Gura did some awesome work by winning the Heller and McDonald cases. But some people are not certain his approach is the best in some other cases. They are very satisfying to the “true believers” like me but that doesn’t necessary generate the best results. Think, no compromise and losing versus getting incremental results.

The Drake case is a case in point. Peruta may be the better horse to bet on.

From CalGunsLaws.com:

Drake had some baggage. It might have forced the justices to rule on whether concealed-carry permits are unconstitutional. That would be a huge jump for the justices, and there is a good chance that there are less than five votes among the Court’s current membership to rule for gun owners on that issue.

Once the Supreme Court settles an issue it is rare for them to ever revisit it, and traditionally the justices like at least 20 years to pass before reconsidering a matter (though there are exceptions). For those who want to advance gun rights, it’s much better to have no precedent at all than to have bad precedent.

The other problem with Drake is what is called prior-restraints doctrine, which is when the government requires you to get a permit before engaging in speech-type activity, such as a license before showing a movie. Any government system requiring citizens to get government permission before speaking faces a strong legal presumption that it is unconstitutional, and the government must show that the license is narrowly focused on achieving a compelling public interest.

Applying that legal doctrine to guns is considered far-fetched by many Second Amendment lawyers. The courts will likely never adopt such a demanding standard. Speech is by nature spontaneous and fluid. Many of the most important things to be said are said in the moment.

Firearms, in contrast, are tangible, heavy, and expensive. You have to think about obtaining a firearm, plan for it, budget for it, and then go to specific locations to obtain one. And words can rarely kill people, but guns can.

Yet these are the arguments Drake’s lawyers chose to make, so the biggest problem withDrake may have been the legal team. Lead counsel in that case is Virginia-based lawyer Alan Gura, who was one of the lawyers who argued both of the Supreme Court’s famous Second Amendment cases, Heller and McDonald.

In contrast to Drake, Breitbart News has already explained why Peruta is a perfect case for the Supreme Court to take. California law forbids openly carrying firearms outside the home and provides that no one is entitled to carry a concealed weapon without a permit. It empowers local sheriffs with the discretion to decide who gets permits, and the sheriff inPeruta requires applicants to give some special reason aside from a desire for self-defense.

Peruta was extensively discussed in the Drake legal briefs filed as part of the petitioning process, more thoroughly than any other case except Heller itself. So the justices had ample opportunity to compare both cases and determine which one they would prefer. AndPeruta was argued by former U.S. Solicitor General Paul Clement, regarded by many as the best Supreme Court lawyer in America, who would also argue the case at the High Court.

3 thoughts on “Alan Gura may not be our savior

  1. The differences cited between NJ & CA don’t exist. NJ also prohibits permitless open carry, and applicants in both states must satisfy law enforcement that they have a genuine need to exercise a constitutional right.
    “In contrast to Drake, Breitbart News has already explained why Peruta is a perfect case for the Supreme Court to take.
    [1.] California law forbids openly carrying firearms outside the home [unless one has a permit] and provides that no one is entitled to carry a concealed weapon without a permit. [Exactly like NJ]
    [2.] It empowers local sheriffs with the discretion to decide who gets permits, and the sheriff in Peruta requires applicants to give some special reason aside from a desire for self-defense. [Exactly like the NJ System, except that NJ’s permit applications with “good cause” are forwarded by the Police to a Judge for issuance, instead of being directly issued by Sheriffs in CA]”
    Lastly, Mr. Gura brought a case in California (now called Richards v. Prieto); however, the Drake case was disposed by the 3rd Circuit before the 9th Circuit decided Richards and Peruta (both argued 12/6/2012, along with a Hawaii case called Baker). With a favorable holding at the 9th Circuit, it is no wonder that 9th Circuit was cited in support of Drake’s petition. Mr. Gura also brought Palmer v. DC and Moore v. Madigan, both against jurisdictions banning open carry.

  2. I read all the briefs in Drake. They show that NJ’s law, and the court support of it, are un-Constitutional (the law) and clearly without basis (the court support).

    And, considering the already in existence split among the lower courts there are only 2 reasons for the SC to not take Drake.

    1 – Waiting for Peruta. The SC likes to have as many district courts on record as possible and the 9th is a big player.

    2 – hostility towards the arguments.

    I hope #2 is not the case and that when the SC does get Peruta, and does finally address the split it will decide in our favor.

    But I’ll be nervous about it until it happens.

  3. I’m a Pollyanna on this topic.

    The Ninth was the only Circuit left with a may-issue regime that would *get* a challenge, the rest had either found the other way or only have shall-issue/”may-issue in practice” states in them. And, as noted, California is a lot bigger than NJ population-wise and has existing diversity of issue by county.

    I can’t imagine it hurts that CalGuns has wins at the county level demonstrating the arbitrariness and corruption of may-issue in practice in places like Sacramento, nor that the “Greater LA” counties, Orange and Venture, have already acceded to Peruta.

    Ruling on Drake directly kicks NJ’s “settled law” and practices in the teeth. Ruling on Peruta just “clarifies” California’s mixed rules.

    Maybe that will make a difference. I hope.

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