Second Amendment faces new challenges

It has been nearly 220 years to the day that the Second Amendment was adopted as part of the Bill of Rights and as with many amendments, its meaning is still being interpreted.

Alan Gura, a partner in the Virginia firm Gura & Possessky PLLC, discussed some of the more significant cases recently with members of the Rochester Lawyers Chapter of The Federalist Society.

Gura, who has successfully challenged gun laws, is known as the pre-eminent authority on Second Amendment rights, chapter President Jeffrey A. Wadsworth, a partner at Harter Secrest & Emery LLP, told those who attended.

Gura was involved in two recent landmark U.S. Supreme Court decisions on gun rights: District of Columbia v. Heller 554 U.S. 570 (2008) and McDonald v. City of Chicago 561 U.S. 3025, 130 S.Ct. 3020 (2010). Gura represented Dick Heller, a Washington, D.C., special police officer who challenged the district’s law banning the registration of handguns and requiring firearms kept in the home be non functional.

The Second Amendment, as noted in the 2008 decision, provides: “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

Gura said the district argued it applies to bearing arms for military service and not for individual use.

“The Supreme Court had to address that argument in order to decide this case,” he said.

The Supreme Court, in its 5-4 decision, held that an individual has the right to possess a firearm and use it for traditionally lawful purposes such as self defense within the home.

Gura said the Constitution was interpreted to mean what farmers at the time (18th century) thought it meant. Other lawful purposes for gun use include hunting and sport.

Gura was also lead counsel in the McDonald case, which resulted in another 5-4 decision. It holds that people have a fundamental right to keep and bear arms and that the Second Amendment right applies to states and local governments, incorporated through the Fourteenth Amendment’s Due Process clause.

Gura said there are several exceptions. For instance, one may not carry any type of weapon to any place at any time. Schools and government buildings are considered “sensitive” places where arms are not allowed, although he said no one has explained what is meant by sensitive. He said carrying concealed weapons may also be banned, which limits the way in which one might bear arms.

Gura said legislation can regulate arms, but it cannot ban all weapons. He said most states have pretty liberal permitting statutes, but a handful — New York included — have more restrictions.

He referred to that as a prior restraint issue and compared it to the Occupy Wall Street movement.

“If you want to occupy a park, you might want to get a permit so the police don’t come and wash away your tent,” Gura said.

He said Heller applied the common use test; meaning, is it the kind of thing people would expect to have in common use. If it is considered common use, it is protected. He said some challenges conflict with the Second Amendment and are decided based on its interpretation while some laws seek to ban or restrict certain types of weapons such as handguns or assault arms.

Someone asked about nunchucks, which Gura said present an interesting issue, noting there was a case in Hawaii that claimed their ban was racist as they were preferred by many Asians.

Personal possession of nunchucks is illegal in New York and other states. The New York ban is being challenged by Long Island attorney James Maloney. Gura said he thinks there is a good argument to be made for the use of nunchucks in self defense.

He said Tasers present another tough question. Gura said he can see their use in self defense and that they can probably be regulated, but not banned.

Coming up is another Illinois case, Wilson v. Cook County, which challenges a ban on semi-automatic weapons.

“I have some hope for that case,” Gura said, noting he does not think a fully automatic weapon will survive the common use test.

Gura said vagueness is always an issue when dealing with gun laws and that every regulation has some underlying affect. He also said the government does have the right to regulate arms for public safety, but it is limited to rights reserved by the Constitution.

Gura said the next issue will be on carrying arms outside of the home. He said some people claim the Heller decision was limited to the home, but he believes it was clear that it applies to outside the home as well.

Gura’s talk was the chapter’s third event this year. He was introduced by Wadsworth at the office of Nixon Peabody LLP.

 — Photos by Vasiliy Baziuk