Alan Gura's latest brief

It really starts getting interesting around page 22, covering some rulings I was unaware of in the process of setting up his argument.


  • Hopefully I’ll have the time to read that next month… Or maybe next year…
  • The last several pages are good rhetoric.

    panel found that current handgun access is “ample” and that the
    delays inherent are “de minimis.” App. 20a. Would it have made that
    determination if a state had banned interstate contraceptive sales?

    The burden [would be], of course, not as great as that under a total ban
    on distribution. Nevertheless, the restriction of distribution channels
    to a small fraction of the total number of possible retail outlets renders contraceptive devices considerably less accessible to the public, reduces the opportunity for privacy of selection and purchase, and lessens the
    possibility of price competition. Carey, 431 U.S. at 689 (citation and
    footnotes omitted).

    Nor was it logical to suppose that shippers and in-state FFLs would
    provide their services free of charge. The harm may be particularly
    acute in the District, but every handgun sale is burdened by
    the lack of a na-

    tional retail market.


    The revolt against Heller has entered its second decade. The
    divisions are stark. There is nothing to be gained by further
    percolation in the lower courts. Ten years of rational basis
    masquerading as intermediate scrutiny are now turning into rational
    basis masquerading as strict scrutiny—when it does not appear undisguised, on judicial assertions
    that Second Amendment burdens are insignificant. Only rarely do
    heightened scrutiny or categorical text-and-history analyses
    seriously test compliance with the Second Amendment. The damage to
    confidence in the rule of law itself, not merely to Second Amendment
    rights, is significant. The public may not always be conversant in the finer academic points of
    constitutional law, but it knows when rights are illusory. And in time,
    “watering [strict scrutiny] down here w[ill] subvert its rigor in the
    other fields in which it is applied.” Employment Div., Dept. of Human
    Resources of Or. v. Smith, 494 U.S. 872, 888 (1990). "

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