The Power of Patience
September 24, 2010
Despite recent wins, securing our rights will still be a long fight.
In the 1920s and 1930s, Jehovah's Witnesses were viewed by many with the same horror and loathing gun owners receive today. So the 1920s and 1930s saw widespread state and local legislation against Jehovah's Witnesses, and though the Bill of Rights guarantees freedom of speech and religion, it took 30 to 40 years of careful litigation--patiently piling up precedents to achieve the overthrow of those laws by the Supreme Court.
The relevance of the Witnesses' experience to gun owners is that it will take at least that many years of patient, careful litigation to remove the morass of senseless anti-gun laws at all levels of government.
Unfortunately, the gun movement is afflicted by multiple glory-seekers and fanatics disguised as lawyers--but without any real background in constitutional litigation--bringing lawsuits that are sure to lose and create disastrous precedents to adversely influence the development of Second Amendment law. The most ill-advised of all would be premature challenges to the "assault weapon" bans that now exist in several states.
But before getting to that, I want to emphasize how limited and undeveloped Second Amendment law is now. The very narrow basis on which the 5-4 Supreme Court's Heller decision voided Washington D.C.'s handgun ban was that law-abiding responsible adults have a Second Amendment right to possess handguns for the defense of their homes and families. Note how far that is from what some unsophisticated gun owners and lawyers assume: Heller emphatically does not mean all laws gun owners dislike are ipse facto unconstitutional.
Without arguing that it will be so applied, consider how narrowly Heller might be applied: While unlikely, it is not inconceivable to narrowly interpret Heller as allowing legislatures to ban any firearm except the 9mm Beretta and Sig Sauer handguns standardized as combat weapons by the U.S. military. It could be argued that if you want to defend your family, a Beretta or Sig Sauer will do the job--so you have no right to any other weapon.
Less unlikely would be a legislature banning all the following as unprotected by the amendment because they're not strictly necessary for the defense of the home: all rifles, all hunting shotguns and all handguns smaller than .38 or 9mm. Again, I am not suggesting such bans will be adopted or that they would be upheld by the courts. All I am saying is that such bans are conceivably valid in the current undeveloped state of Second Amendment law.
How the amendment will be construed--broadly or narrowly--will be determined by the course of litigation in the next few years.
Which brings me back to the disastrous prospect of assault weapon litigation, of which I have much doleful experience. I lost the major California assault weapon case before the California Supreme Court. I was involved in three other California Supreme Court assault weapon disasters as well as losses in Connecticut and Colorado.
The simple fact is that there is not one case holding assault weapon bans violate either state or federal constitutional right to keep and bear arms provisions. Why? "Assault weapon" is an epithet seized upon by the anti-gun movement to demonize a heterogeneous collection of down-powered firearms.
This demonization campaign has been so successful that many Americans, including the vast majority of judges, are wrongly convinced that banning assault weapons is minimal, sensible gun control and that there is no legitimate reason for a civilian owning an assault weapon.
The proven fact is that judges will move heaven and earth to uphold assault weapon bans. They will accept fallacious arguments that will justify not only those bans but bans against other guns which might be struck down except for the false precedent of assault weapon cases. Until assault weapon cases were brought, Colorado, Connecticut and Ohio had state constitutional right to keep and bear arms provisions. Now those provisions have been construed into nullities by courts determined to uphold assault weapon bans.
In the current undeveloped state of Second Amendment precedent, the most we know is that the Second Amendment protects an undelineated set of handguns because they are weapons "commonly owned" (the Supreme Court's phrase) for the defense of the home.
Under that reading of the Second Amendment, even a judge friendly to gun rights is unlikely to find the Second Amendment protects ownership of assault weapons. To realize the absurdity of such an assault weapon case just try: one, constructing a serious argument that assault weapons are commonly owned guns that are necessary to defend the home; and two, imagine selling it to a judge who knows nothing about guns but is convinced that anyone who wants an assault weapon is probably a dangerous fanatic if not a maniac.
Reckless, improvident assault weapon litigation is an invitation to disastrous precedents limiting the right to keep and bear arms. But there is some good news about careful, sensible gun litigation. The first step after Heller--which applies only to federal territory like D.C.-- is for courts to recognize that the Second Amendment governs states and cities. Attorney Donald Kilmer and I just won such a case in the Ninth Circuit that binds the federal courts in all the far western states (See last issue's "Speedloads" for details).
Also, Alan Gura, the lawyer who handled Heller, and Steve Halbrook, the NRA's chief right to keep and bear arms litigator, both have cases challenging Chicago's handgun ban (Seventh Circuit). And Gura and Donald Kilmer have a case attacking a California "gun safety" law that has been irrationally applied to bar sale of clearly safe handguns.
Chuck Michel and I challenged a ban on gun possession for housing authority residents. But the San Francisco Housing Authority repealed the ban rather than trying to defend it. Michel and I are challenging San Francisco ordinances banning firing a handgun and requiring that handguns be trigger locked at all times with no exception for self-defense use.
We are also attacking San Francisco ordinances banning sale of ammunition with "no sporting purpose" (i.e., self-defense ammo) and banning sale of "ultra-compact handguns (H&K P-7s, Colt and Beretta .380s, Makarovs and Walther PPs and PPKs). All these cases are being sponsored by the NRA and litigated with the help of Steve Halbrook. These San Francisco and Los Angeles ordinances are so clearly invalid that my expectation is that all will be overturned, creating useful right to keep and bear arms precedent.
In contrast, the most probable result of assault weapon cases is that to uphold assault weapon bans judges will adopt distorted rationales that will then
be available to justify a parade of other gun bans.
It took 30 years, and countless Supreme Court cases, to eradicate legislation against Jehovah's. It will take at least that long to patiently pile up precedents until we can win an assault weapon case under the right to keep and bear arms.