Be careful what you wish for

Yesterday Say Uncle posted about the 2nd Amendment case in Washington D.C. Later in the day I got an email from a friend pointing out the same story in a different paper. In part he said:

I find the current political landscape so depressing that I just want to wrap myself up in some nice little cotton-wool sleeping bag and pretend it isn’t happening.

Obviously, it is and there’ll be no hiding from it if these attorneys prevail:

If they prevail and if the Supreme Court agrees, it’s all over. Who would have thought the Supreme Court would trash the 1st Amendment — _seriously_ trash it — by criminalizing “political” speech? But, they did. If they can trivialize the 1st, imagine how unimportant they think the 2nd is.

I replied:

I knew this was in the works and I heard about this AP story earlier today.

The gun-rights leaders have been working on this for several years. It is figured to be one of our best chances to get the Supremes to overthrow some oppressive laws. It was hoped we would have some more pro-gun judges on the Supreme Court before it made it there but it’s not entirely clear that will happen now that the Senate is control by the Democrats and more importantly the makeup of the Senate Judiciary committee. We’ll see….

My friend wrote back saying, in essence, “One should be careful what you wish for…”. This is exactly correct and why many top level people in the gun-rights movement breathed a sigh of relief when the Supremes failed to take up the case of the California assault weapon ban. In that case because it “only” affected a subset of guns it was feared the court could rule that it didn’t violate the 2nd Amendment. They could say something like, “As long as you are allowed to own at least one firearm then your rights have been met.”

The gun rights leaders wanted a more clear cut case and went to Washington D.C. to get it. In addition to being less complicated because of the lack of state law it also completely bans handguns and renders all long guns useless. It can’t get much more simple and direct. This makes it more difficult for the judges to dance around the issue and not throw out decades of oppressive gun laws. This simpleness and directness also makes it risky for the civil rights advocates.

A commenter to Say Uncles post gets it right when he says, “Don’t worry (or get elated) until the Supreme Court grants cert – and I put the odds of that at 99:1 against.” The judges are going to be very reluctant to rule in such a way that thousands of laws, most of which are several decades old, will be at risk of being overthrown. To rule in favor of the civil rights advocates would throw into question the convictions of thousands, perhaps tens of thousands of prisoners.

“So what”, you say? If someone was convicted solely on the basis of a violation of an unconstitutional law shouldn’t they be set free? From the “good of society” perspective the answer is, “Not necessarily”. Suppose the ex-boyfriend of some woman breaks into her home and beats the crap out of her. The cops arrest him in Washington D.C. and find him in possession of a gun that is forbidden under the D.C. law. The woman then decides she doesn’t want to testify against him for whatever reason. The cops and prosecuting attorneys decide he is a scumbag that will likely severely injury or kill the next woman that he “hooks up with” and society would be better off with him behind bars for a few years. They can get a slam-dunk conviction on the gun possession charges and do so without addressing the fact that he has a habit of “tenderizing” women after he has used them. This also reduces the chances that he will “finish the job” he started with the woman when he gets out of prision. After all, she “did what she was told” last time. Do you want this piece of garbage roaming the streets a month after the ruling comes out? Neither do I and neither do the judges.

So what we are left with is that the judges will be faced with the overwhelming evidence that the 2nd Amendment means what it says and that the D.C. ban is unconstitutional and therefore from a legal standpoint they must rule with the civil rights advocates. On the other hand they will be faced with the practical consideration that they will be turning thousands, perhaps tens of thousands, of scumbags loose on the streets. How many deaths are they willing to accept on their hands for doing the “right thing” from a legal standpoint?

One solution they could adopt is to “hold their nose” at the legal stink they would create and say the 2nd Amendment doesn’t apply to individuals. But these judges aren’t stupid or completely out of touch with the mindset of ordinary people. They know such a decision will likely result in violence of a different type and perhaps be even more disruptive to society.

The easiest solution for them is to refuse to hear the case. This will let the illegal law stand, keep the scumbags in prison, and avoids inviting the civil war that might result from such a blatant violation of a fundamental part of the U.S. Constitution.

Update: Say Uncle agrees with me and asks “What now?” My answer is that we have to just keep fighting the battle one oppressive law at a time. We have to undo things the same way it happened. It took decades to get here and it may take decades to regain our rights. But we don’t know yet for certain. We have to wait and see for a while. The Supremes could bite the bullet, so to speak, and we’ll suffer some scumbags on the street, and great wailing and knashing of teeth as laws all over the country are revised. We should know in a year or two.


4 thoughts on “Be careful what you wish for

  1. And lets never forget the crimes that would NOT have taken place, or the attempted crimes that would have failed, if the People had had their RKBA fully intact.

    Our problem is the impossibility of proving a negative: We can see the scumbags now in prison, but we can’t see the ones who wouldn’t have gone so far in committing crimes, or the ones that might have been stopped, if DC area citizens had more guns to protect themselves.

    Nor can we see how many murder victims might have lived if they’d been allowed the use of arms. It is for these people, and for those in the future, that the SCOTUS needs to respect and uphold the Constitution.

    When guns are reserved for criminals’ use only, more innocent people will suffer.

  2. >> “So what”, you say? If someone was convicted solely on the basis of a violation of an unconstitutional law shouldn’t they be set free? << That might seem to be the case and still not obtain in the law. I seem to remember a decision not too long ago where they said essentially that innocence by itself isn't sufficient grounds to overturn a jury verdict. Or something like that. If they can encompass that nonsense, then surely they can figure out how to weasel out of setting free unconstitutionally imprisoned men. M

  3. This is why the best case for us is not this one, but the one arising out of the Katrina seizures. If that case ever made it up to SCOTUS (and I don’t believe it is settled in its entirety) they could rule the 2nd protects an individual right AND is incorporated against the states, without upending a single law. And the circumstances in New Orleans of seizure of property without any process of law might even swing a few of the liberal justices.

    After that, with the individual right issue settled, the circuits can hash out a million cases and do the hard work of striking down laws, before SCOTUS has to touch it again.

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