Wednesday, October 1, 2014

Newest from Alan Gura: The Second Amendment as a Normal Right

Photo of Alan Gura
Alan Gura
(source: Wikipedia)
It's been said before, and I'll say it again: Alan Gura is the MAN! His latest analysis has been published in the Harvard Law Review: The Second Amendment as a Normal Right.

(Almost) needless to say, it's worth reading the whole thing. It's not terribly long but contains vital — yet easily overlooked — points.

Now, I'd heard that the Second, Third, and Fourth circuits upheld "good cause" requirements (under whatever name they give them) for carry licenses, while the Seventh and Ninth circuits struck them down*, but it's interesting to see an analysis of exactly how and why those conclusions happened.

I for one don't like having to rely on the courts. I believe Mr. Gura himself concedes that taking a case to court is a crap shoot, and a 5-4 split is a MUCH closer margin than I'm comfortable with. The Ninth circuit's approach - assuming the right exists and questioning whether the legislation should, rather than acknowledging the legislation exists and therefore questioning whether the right does - should not be a novel approach to Second Amendment jurisprudence. It should have been a given, a default. It should have been how these cases were always decided. Still, it's good to see at least one circuit taking it seriously.

Another thing that's been said before: The courts don't treat any other Amendment in the Bill of Rights the way they treat the Second. If they allowed a fraction as many "reasonable restrictions" on the First, Fourth, or Fifth Amendments, the country — liberals included — would be outraged.

(Hat tip to Sebastian at Shall Not Be Questioned)

* - Strictly speaking, the Ninth's decision specifically says it's not striking the requirement, only the practice that says self-defense does not constitute "good cause". But as Mr. Gura writes, it's hard to imagine how the effect would be different.

1 comment:

  1. Someone recently (today?) had a post something to the effect of what would it look like if voter id laws were like concealed carry permit laws.

    I love the premise. Both are fundamental freedoms. but treated VERY differently.