To: firearms-alert 
From: Jeff Chan 
Date: Thu, 2 Apr 2009 01:37:00 -0700
Subject: [firearms-alert] Alan Gura speaks about Heller at Santa Clara University

Alan Gura, the attorney who won the Heller case, gave a lunch
hour talk at Santa Clara University on 1 April 2009.  The talk
was sponsored jointly the Federalist Society of the law school
and the SCU Civil Society Institute.  The room was unusually
full, and I'd guess a sizeable majority were law students or
professors, but there were also a minority of local gun rights
folks and University libertarian/free market economics people
associated with the Civil Society Institute.

  http://law.scu.edu/life/the-federalist-society.cfm
  http://www.scu.edu/civilsocietyinstitute/

Gura spoke for about 20 minutes and took questions for the
remainder of the hour.  My takeaways:

1.  Incorporation cases are proceeding, including one he's
involved with against the city of Chicago and Don Kilmer's
Nordyke case in California.  (Kilmer was in the audience.)

2.  Second Amendment incorporation cases should challenge the
earliest 14th amendment decisions such as the Slaughter-House
cases on due process or privileges or immunities grounds.

3.  D.C. imposed new gun restrictions after Heller, and Gura has
a lawsuit against them.  D.C. government remains very hostile to
gun rights.

4.  Enumerated rights are traditionally given very strong
protections under our system of law, and that should apply to the
Second Amendment now also.

5.  We may get strict scrutiny, but it will take many lawsuits to
get there.  In general Heller opens the way to many new lawsuits
to overturn lots of gun control, but we need incorporation under
the 14th amendment before that can happen.

6.  Anti-gun legislators will still try to enact as many
roadblocks as possible to gun ownership.  Anti-gun executive
branch people in the current administration will continue to try
to implement as many administrative restrictions against gun
ownership as possible.

7.  Bans on commonly used firearms will fail the tests in Heller.

8.  Either concealed or open carry appears to be required under
the "bear arms" phrase, and some kind of national standard may
emerge.  Concealed carry is much more likely to be codified and
approved than open carry since the former is more widely
accepted.

(Gura praised Clayton Cramer's historical analysis of the term
"bear arms' for its positive impact on the case.)

9.  Machine gun restrictions are unlikely to be repealed, mostly
due to political reasons.

10.  The common use test is not circular logic because (sorry,
this was an important point, but I forgot the argument.  Was
anyone else there?  If so, do you remember the argument?).  The
criticism is that gun restrictions could make certain types of
guns uncommon, so gun restrictions could cause the common use test
to fail.  In other words, gun restrictions could functionally lead
to constitutional gun bans.

11.  California's so-called "assault weapon" ban is unlikely to
pass the common use test, since semi-automatic rifles like the
AR-15 are very commonly used in competition, etc.  The AR-15 may
be the most commonly owned rifle in America now.  So state
semi-auto bans are likely to eventually be struck down as
unconstitutional, after we get incorporation, etc.

12.  It's very important to bring appropriate cases.  Choosing
inappropriate cases and losing them may literally set a bad
precedent that makes it much more difficult to overturn gun
restrictions.

On a personal note it was a real pleasure to hear Gura speak
about the case and the likely results from it, to meet him, etc.

Jeff C.
-- 
Jeff Chan
http://rkba.org/