May 19, 2008
Is the NRA really ready for post-Heller litigation?
Writing here over at Pajamas Media, Glenn Harlan Reynolds has these interesting reflections on the recent NRA national convention:
I traveled to Louisville, Kentucky last week, for the National Rifle Association’s annual convention.... People seemed much happier, and more optimistic....
The conventional wisdom, shared by people on both pro- and anti-gun sides of the issue, is that the court will probably find that the Second Amendment protects some sort of individual right to own a gun, that the right is nonetheless subject to reasonable regulation, and that the District of Columbia’s near-total gun ban violates that right by being too extensive and intrusive to be “reasonable.” This will then leave to the lower courts, and future Supreme Courts, the question of what other regulations might be unreasonable.... Those decisions will likely stretch over a decade or more and — as I noted in my talk — a single Supreme Court decision doesn’t necessarily accomplish much on its own.
Follow-through is crucial, and the Supreme Court over the next decade is likely to feature more than one justice appointed by the next President. Clinton and Obama may try to sound reassuring about guns when they’re running for office, but it’s a safe bet that their Supreme Court nominees will be less friendly to Second Amendment rights than McCain’s.
So does this mean that the NRA crowd has gotten too complacent? Possibly.... On the other hand, in today’s environment, it’s also easy to see where the momentum is — and the Supreme Court is likely to go along or face serious blowback on its unenumerated rights jurisprudence.
Give credit where credit is due: For a civil rights group, especially a group dedicated to a civil right that has faced as much sustained attack from politicians and the media as gun rights have, to reach the the point where complacency is a risk is no small accomplishment. Perhaps the gun-rights activists, and the candidates, are merely responding to public sentiment. If so, the gun-rights community really is in the catbird seat. We’ll find out if that confidence is justified soon enough.
As regular readers know, I am very interested in what is going to happen after Heller, especially because I expect "lower courts, and future Supreme Courts" will be presented with hard questions about whether extreme federal criminal gun laws are "too extensive and intrusive" to be reasonable under an individual-rights view of the Second Amendment. I wonder if there was any discussion at the NRA convention about how this "civil rights group" will approach cases like Hayes and other cases in which persons with very minor criminal records are denied their civil gun rights.
Some related posts on post-Heller litigation possibilities:
- Hunting, pardons and a Second Amendment claim?
- More thoughts about the scope of Second Amendment rights
- Even the NRA, while urging Second Amendment strict scrutiny, thinks Martha Stewart and Lewis Libby have no gun rights
- Yet another federal sentence prompting Second Amendment questions
May 19, 2008 at 09:16 AM | Permalink
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Lawyers tend to over-anticipate things, and I believe that tendency is showing up in this context. The oral argument did suggest that the pro-gun forces will win, but reading opinions out of arguments is risky business.
Assuming, as I do, that the Court will strike down the DC blanket ban, we're just going to have to wait to see what the language of the majority opinion is -- or for that matter, whether there even IS a majority opinion.
Previously convicted felons might be licking their chops to get their hands back on guns, but they're going to have to wait like the rest of us to see what, exactly, the Court says. And while I'm all in favor of civil rights -- which I think the NRA is justified in calling the Second Amendment right to keep and bear arms -- I can think of a number of enterprises more important to the public good than rushing Mangnums into the hands of people with criminal records.
Posted by: Bill Otis | May 19, 2008 9:58:25 AM
Although Heller has not yet been decided, the Court handed down two criminal cases about a half hour ago. I have not read either opinion yet, but both are bad news for criminals.
In the Rodriguez case, the Court went the government's way in consturing the ACCA, overturning the decision of the reliably wrong Ninth Circuit.
In the other case, the Court upheld Congress's 2003 attempt to curb kiddie porn. (I believe this is the virtual porn case, although) I'm not certain of that).
I imagine Doug will post more on these opinions later today.
Posted by: Bill Otis | May 19, 2008 10:29:41 AM
People with very minor criminal record should be able to have their gun 2A rights restored. I think some how the ATF needs to re-establish a way to perform back ground checks the way they did prior to 1992, I think that after the Heller decision this becomes more likely. Think about it if someone takes the time to legally get their gun rights back what are the chances of them committing more crime? Criminals will always be able to illegally possess guns.
Posted by: BS | May 19, 2008 12:29:00 PM
Obviously gun violence is a major problem in this country, and cities sush as Washington, D.C., New York City, Los Angeles, Oakland and others should be allowed to protect their citizens from gun violence and promote an attitude of peace. It seems that many guns rights advocates will allow urban dwelling individuals (often minorities) to kill each other so long as their gun rights aren't infringed upon. Justice should be blind, but it's not, and cities with millions of people and lots of potential for violence should be allowed to pass reasonable gun control laws.
Posted by: joe | May 19, 2008 4:19:48 PM
"Criminals will always be able to illegally possess guns."
I have never seen anyone successfully refute that, and I can't either.
Posted by: Bill Otis | May 19, 2008 5:35:41 PM
Joe with all due respect the gun ban in Washington DC has not produced that "attitude of peace". In fact I believe that since the ban took effect in 1976 gun violence has never decreased. If this is true why wouldn't a person be allowed to have a functional weapon for defense?
Posted by: BS | May 19, 2008 6:13:06 PM
"It seems that many guns rights advocates will allow urban dwelling individuals (often minorities) to kill each other so long as their gun rights aren't infringed upon."
I have no portfolio to speak for Second Amendment advocates, and have disagreed with them in some respects, but I think this attack on them is very misplaced.
If Heller comes out the way most people expect, it will establish that Second Amendment advocates have had their gun rights massively infringed upon for years, in the District of Columbia and elsewhere. So to say that these advocates have "allow[ed]" minoities to kill each other so long as their gun rights are NOT infringed refers to a situation that does not exist.
In addition, your argument makes very curious use of the word, "allow." Criminals do not kill their victims because Second Amendment advocates, or Third or Fourth or Fifth Amendment advocates, "allow" it. They kill because they choose to, generally out of greed, or malice, or to eliminate witnesses, or for revenge or lust. The notion that advocates for the Second Amendment ipso facto "allow" murder or contribute to it at all is at best undocumented and at worst a smear.
Posted by: Bill Otis | May 19, 2008 7:12:07 PM
Tea-leaf-reading is always dangerous, but at this point it looks very much like 6 Justices will support a basic individual rights theory. After that, however, it gets very fuzzy and potentially fractured. But I do suspect a majority is not going to say anything that gives comfort to those who want to overturn felon-in-possession laws, machinegun restrictions, and most other existing Federal firearms regulations. There was more than ample briefing and argument on these collateral topics for there to be little chance the Court will overlook their potential significance and say something careless or overbroad.
The best one could hope for on that front is that the majority (or plurality?) opinion takes the sort of minimalist approach that Justice Roberts likely favors, and is entirely silent on the breadth of the Second Amendment beyond the exact question posed in the case before the Court. That might leave some maneuvering room for eventual challenges to the felon-in-possession laws. Although my speculation is that the only such challenges with a prayer of succeeding will be in the restoration of rights arena (where BATF presently cannot process such petitions, even though the procedure has been codified), and only if the plaintiff's situation is incredibly sympathetic. If you have, say, an honorably retired Marine who's disqualified from civilian firearms possession because he was convicted of possessing an ounce of pot (or some other 'minor' then-felony) as a teenager 40 years ago, there might be a chance. But given the number of cases in which post-conviction civil rights disabilities have been upheld (e.g., voting rights), I think the vast majority of disqualified persons probably shouldn't start window shopping for guns anytime soon.
Posted by: zippypinhead | May 22, 2008 5:56:45 PM
I can't find anything in your post to disagree with. I gather you have some experience in the field.
Great moniker, by the way.
Posted by: Bill Otis | May 23, 2008 8:26:35 AM
Short answer to your experience query is "yes." However, given who signs my paycheck (and the fact I like getting paychecks), I can't really honor Professor Berman's comment posting request to "indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog." As a former AUSA in E.D.Va., I'm sure you'll appreciate this.
Sometimes it's a good thing that "on the Internet, nobody knows you're a dog." Let's just say this dog enjoys reading some of the better law blogs in his free time. And very, very, occasionally, likes to bark.
Posted by: zippypinhead | May 23, 2008 6:42:28 PM
Fair enough. For a dog, you do some well informed woofing.
I make no attempt to hide the ball about my own background because I wrote so many publicly filed briefs, and at this stage (now that I'm outside the government) have done enough public speaking, writing and TV interviews here and there, that anonymity isn't going to work for me, so I don't even bother.
And here's to being a pinhead. Definitely my cup of tea.
Posted by: Bill Otis | May 23, 2008 10:31:23 PM