Second Amendment litigator Alan Gura, of 'Heller' fame, addresses Phila. law students

By Jon Campisi | Feb 12, 2013

As talk has turned toward gun control and the prospect of revising the nation’s firearms

As talk has turned toward gun control and the prospect of revising the nation’s firearms

laws in the wake of the mass shooting at the Sandy Hook elementary school in Connecticut, one man in particular has a fairly unique perspective.

He is Alan Gura, and while his name might not be widely known to the masses, his work undoubtedly is, especially whereas Second Amendment jurisprudence is concerned.

Gura came out on the winning ends of the landmark U.S. Supreme Court decisions District of Columbia v. Heller and McDonald v. City of Chicago.

In the former, the nation’s high court overturned Washington, D.C.’s restrictive three-decade ban on handgun ownership in the home, and in the latter the justices made a similar ruling with regard to Chicago’s former handgun ban, simultaneously incorporating the Second Amendment of the United States Constitution to the individual states.

Heller was decided in 2008 and McDonald two years later.

Gura, a partner with Gura & Possessky, which has offices in Washington, D.C. and Alexandria, Va., and focuses primarily on civil rights and constitutional issues, made a stop at Drexel University in Philadelphia on Feb. 11 where he spoke to a group of law students at the Earle Mack School of Law.

The event was organized by the university’s chapter of the Federalist Society for Law and Public Policy Studies, a conservative and libertarian-leaning legal organization.

Gura’s speaking engagement was designed to touch on issues such as gun control and proposed federal gun legislation in the wake of the Sandy Hook mass shooting that took place in Connecticut – in which 26 students and teachers were reportedly slain – and once again turned the country’s attention toward the state of firearms laws.

Gura’s perspective on the topic is unique in that he represented specific plaintiffs in cases where local gun laws were challenged, and eventually overturned, marking a pivotal moment in Second Amendment jurisprudence.

One topic Gura touched on during his hour-long address was the concept of “categorical exemptions” within the Second Amendment.

He used First Amendment law as an example, talking of how while protected speech is enshrined in the U.S. Constitution, there are laws making perjury illegal.

Similarly, the Second Amendment has categorical exemptions, such as the illegality of average citizens owning fully automatic machine guns in most instances, or even weaponry such as bazookas, something that arose out of the National Gun Control Act and was upheld in a 1930s court decision.

That legislation arose out of the Tommy gun era of the early 20th Century.

As far as the legality and constitutionality of something like a so-called “assault weapons” ban at the federal level, Gura remains convinced that such a prohibition might run afoul of the constitution, given the wording in Heller that talked about firearms that are in “common use” at the time and used for “traditional lawful purposes,” phrases that actually came from that earlier 20th century court decision.

The reason – the assault weapons talked about by gun control proponents are none other than semi-automatic rifles that in appearance resemble full auto machine guns used in military battle, but are functionally the same as any other semi-automatic firearm.

And the fact that many Americans keep these types of firearms for self-defense means they could possibly fall under the common use wording used in Heller.

Still, the legality of any future “assault weapons” ban remains to be seen.

During his speech, Gura mostly addressed highlights of the Heller and McDonald decisions, although he did touch on the topic of proposed gun control laws, mostly during the question-answer session.

When one student asked about the federal government’s limits when it comes to regulating handguns, for example, Gura responded by saying that while the government has the power and ability to regulate firearms because of its compelling interest in keeping society safe, it still has to remain within the bounds of the Constitution.

“There are limits, and it’s our jobs as lawyers, on both sides, to figure out what those limits are,” Gura told the crowd.

One audience member asked Gura if he has a specific direction he’d like to take where firearm litigation is concerned, to which the attorney said he does in his mind, but has to take up matters on an individual, case-by-case basis.

The day after his Drexel speaking engagement, Gura was scheduled to argue before the U.S. Court of Appeals for the Third Circuit, which is based in Philadelphia, on a case involving New Jersey’s gun permitting system.

New Jersey is one of a handful of states across the country that requires those applying for a carry license to offer up a “justifiable need” showing cause why the applicant needs to carry a gun.

Most states today are known as “shall issue” jurisdictions, which is when authorities must give a person a carry license or permit barring disqualifying factors such as criminal convictions.

In states like New Jersey, New York and California, however, applicants must state a specific reason that would justify them carrying a firearm, and very often self-defense is not a valid reason as it is in “shall-issue” jurisdictions such as Pennsylvania and other states with more liberal firearms laws.

Gura explained that because wide discretion is given to the issuing authorities in “may issue” states, a very small segment of the population is actually even given a gun license.

Gura’s case before the Third Circuit is focusing on just that, the idea that government’s should have the burden of proof when it comes to the issuance of carry licenses, not the other way around as it currently is in places like New Jersey.

Government, he said, should have to show cause why they would be depriving someone of his or her right to bear arms in public.

“Basically it’s not a right, it’s an administrative privilege,” Gura said on the state of carry permits in restrictive jurisdictions like New Jersey.

Gura said it’s an interesting time to be a Second Amendment litigator, especially given that there is currently what is known as a “circuit split” among the federal appellate courts, with the New York-based Second Circuit recently ruling that the Empire State’s restrictive handgun licensing scheme is constitutional, while the Illinois-based Seventh Circuit has ruled that that state’s system prohibiting the carrying of guns outside the home violated a person’s constitutional rights.

Up until the Seventh Circuit’s decision, Illinois remained the only state in the union that had no system in place providing for the issuance of carry licenses.

The appeals court essentially directed the Illinois legislature to craft a system that would allow for the issuing of some type of carry permit.

Gura said the Third Circuit case he was scheduled to argue today in Philadelphia could take anywhere from a couple of months to a year to reach a conclusion.

In the end, Gura told the law students that in an era where politicians often rush to enact new laws in the wake of a national tragedy such as the shooting at Sandy Hook, the judiciary is often the last line of defense when it comes to guarding constitutional rights.

And it’s his job, he said, to fight for those rights on behalf of clients who feel they have been wronged.

“Sometimes my world is not understood,” Gura told the crowd. “I litigate cases under the constitution.

“We have a mechanism in our [legal system] to make sure these laws are constitutional and we have to stick to them until we amend the constitution.”

More News

The Record Network