Saturday, August 28, 2010
Must Reading for the Gun Rights Appellate Lawyer
Reading news reports of court action, especially appellate court action, is very frustrating. Vital information is often left out. Or one can tell from inconsistencies in the story that one can be sure that the story is wrong-- if only one knew which part. This post is about the finest piece of legal journalism I recall: Brian Doherty's "You've Come a Long Way, Baby" in the October Reason magazine. Doherty tells the background of appellate lawyer Alan Gura's successful assertion of an individual, as opposed to a state's, right to keep and bear arms, in District of Columbia v. Heller, which he followed up with a second successful case on similar grounds: McDonald v. Chicago. Before reading this piece, I had not appreciated the role and the risk of Gura's strategy to apply the Second Amendment to the states by the privileges and immunities clause of the Fourteenth Amendment, nor how a fortuitously timed ruling of San Francisco's Ninth Circuit created-- for a time-- a split between it and the D.C. Circuit. Doherty also shows what clarification will be needed now that this right is established. If you have any appellate interest in gun law, this article is for you.