Thoughts on Parker v. D.C.

I was talking to our son James last night at dinner and he said he kept expecting to hear my thoughts “on the D.C. case”. Sure I had posted several quotes and a few links and made a few brief comments. But where was the rest of it? And, also, he wanted credit for bringing it to my attention in an instant message several hours after the decision had been released. I had been very absorbed in work and the just recently reformatted the hard drive on my home desktop machine and was still installing things and recovering my normal environment. That meant I didn’t have my email running which meant my alerts weren’t coming through and I wasn’t reading any of the blogs. I was really out of touch and James gets full credit for getting this important case to my attention.

The decision itself is here.

I’m really pleased Silberman mentioned nearly every thing I do in An Individual Right. Because of that there is virtually nothing for me to say beyond “two thumbs up” on the decision itself. What happens next is more interesting.

Watching the anti-gun bigots turn purple with rage (and here) has been fun. There will be a lot more of that in the coming months and I expect this decision and their rage will make gun control an issue during the next election. Both major parties wish it would just go away and Parker V. D.C. means the statists will be afraid they will lose their “right” to have gun control laws. They will be screaming bloody murder as this case heads toward the Supreme Court and the 2nd Amendment will likely end up being a litmus test for all Federal judges (not just Supreme Court justices) being appointed for the next few years.

The most interesting questions to me are:

  • Will the Supreme Court take the case?
  • If they take the case what will they decide?
  • If they take the case what happens after the decision?

There are various ways to look at the Supreme Court’s avoidance of 2nd Amendment cases in the last 70 years. My favorite, based on purely emotional criteria, view is that they haven’t taken it up because they didn’t want to rule against it. The following is based in a large part on that totally unsubstantiated mindset.

The Supreme Court does not operate in a political vacuum. I was young but not totally unaware of the political fever of the 60’s and the events that contributed to The Gun Control Act of 1968 (GCA68). In those times it would have been hard for the court to resist the political winds and strike down a law that had such modest infringements on the 2nd Amendment guaranteed rights as GCA68 did. In the years since then there have been some potential cases but in nearly all of them there wasn’t a “poster child” that both side were willing to support all the way to the top until Emerson. And even Emerson wasn’t the perfect poster child. He did a stupid things with his gun–brandishing it to his wife whom he was in the middle of divorce. And the political winds of the time were blowing pretty hard against domestic violence perpetrators. The Supremes declined to hear that case as well.

NFA34 had similar political winds blowing at the time and avoided the 2nd Amendment issue in part because it was a tax, not a ban, on firearms. In 1939 the famous Miller case made it to the top court but with Miller nowhere to be found his attorney didn’t bother to show up and the case was decided against us. Miller wasn’t a poster child for our side but if I had the ability to go back in time with the purpose protecting our 2nd Amendment rights 1939 is the time and his lawyer’s office is the place I would show up. I’d give the lawyer $1000 and tell him there was another $10,000 for him if he won the case at the Supreme Court. My guess is that case would have gone the other way and gun rights advocates would have saved billions of dollars, 100’s of thousands of hours, and 10’s of thousands of lives would have been saved. But the only time machine I have is stuck in the forward direction advancing at 1 second for every 1000 milliseconds. I therefore have to concentrate on the future.

It’s would be hard to find better poster children than Parker, et al. Years ago I heard one gun rights leader joke that we needed a elderly, female, person of color, who had never even received a traffic ticket, and was confined in a wheel chair for our case to take to the top. Prosecutors don’t try to put people like that in jail for defending themselves even if they do it illegally. Because of this it was considered unlikely we would ever be able to get a case that we could take to the Supreme court that was winnable. Parker and friends don’t meet that criteria (I think one is confined to a wheelchair but I can’t seem to verify it at the moment) but they may be good enough.

Yes, I know, decisions of law shouldn’t be decided on the basis of who the defendant is. Legally it shouldn’t matter whether it was an elderly, disabled, woman or a young male in the KKK being tried for possession of a banned self-defense tool. The reality is that it does matter. And it especially matters when it’s the first case being tried.

On the other side of the equation from the defendant is the law in question. GCA68, which required a lot of debate to get passed, had relatively mild restrictions on firearm ownership. It wasn’t difficult to argue that GCA68 didn’t place more than a small speed bump in the path of any “good citizen” wanted a firearm. There are “reasonable restrictions” on rights guaranteed by the First Amendment so it’s not surprising that arguments are made that “reasonable restrictions” on the 2nd Amendment get some traction.

What helps our side in the D.C. case is that it is a complete ban on possessing handguns and functionally disabling all long guns for all private citizens. Other restrictions such as those on short barreled shotguns, fully automatically weapons, destructive devices, and restricted access to certain classes of people would be troublesome for our side if brought to the top court. One can argue they are “reasonable restrictions” and that the 2nd Amendment is not infringed because you still have some firearms available. In fact The Gun Guys in a mass email I received actually argues this for the existing case, “You can own a shotgun or rifle in the District of Columbia, so the ‘right to bear arms’ was not infringed upon in the first place.” But even casual observers recognize he is nuts. And Judge Silberman, writing for the majority, shot this argument down with, “We think that argument frivolous. It could be similarly contended that all firearms may be banned so long as sabers were permitted.”

Even if this law had been brought up in the late seventies, shortly after the D.C. law was enacted, courts might have been willing to say it was “reasonable” to assume such a law would save lives. After demonstrating the abject failure of the law for the last thirty years no reasoning person can claim the law needs just a little more time before it’s benefits will show up.

We have other Federal districts that have ruled the 2nd Amendment is not an individual right. While this was and is very discouraging and makes bad precedent with the Parker ruling the other direction it means the Supreme court can’t easily ignore the case. They will have to do a very fancy verbal tap-dance to justify to themselves that they should not get involved.

The 2nd Amendment has never been ruled to apply to the states via enforcement of the 14th Amendment. Parker, et al. sidestepped this issue by not addressing a state law.

Hence without a poster child and 70+ years of infringement the 2nd Amendment has been eroded to the point the anti-gun bigots have gotten too cocky. It is very difficult to argue we don’t have an infringement case. It’s very difficult to argue that Parker et al. belong to some special class of people unless you are willing to claim, as some are, that the 2nd Amendment only applies to governments arming themselves. We have our poster children, we have infringement, and we have different jurisdictions ruling in opposite directions. I think the Supreme court will, most likely, take the case.

There were a lot of gun rights leaders quietly engineering (at least one of them does have a degree in engineering) this case for years knowing that if a court case were to be successful it would have to be designed just right. The only 2nd Amendment case they dared push had to be a wedge with no rough edges to get caught by some legal or political nuance. They may have succeeded. It certainly looks like they have a good design and it has survived contact with the enemy.

This is a different conclusion than I predicted just three months ago. This is because I didn’t foresee Parker going our way at the appeals court level. What Silberman did was write (with the help of the plaintiffs attorneys–thank you!) such a narrow opinion that ruling in our favor won’t risk releasing thousands of scumbags from jail. Hence the courts can relieve themselves of the burden of throwing society into chaos with a favorable ruling in our direction.

Assuming they take the case how will they decide? As I said before they will do everything they can to avoid throwing thousands of convictions into question with a broad ruling. They won’t suddenly agree “…shall not be infringed” means what it says. They will either rule the 2nd Amendment guarantees an individual right in a very narrow window of situations or they will rule it does not apply to individuals. With the current political climate it’s not a slam dunk either way but I expect it will go our way. The anti-gun bigots must think that too. Otherwise you would hear them claiming the Parker decision will be thrown out by the Supreme Court and they don’t appear to be saying that. They are just wailing about the end of the world which is music to my ears.

If the Supreme Court decides in favor of freedom there will be almost immediate challenges to New York City and Chicago gun laws. City and state legislative bodies will scramble to preserve whatever they can to keep “those uppity gun owners” in place. With the 2nd Amendment ruled to be an individual right California and other states “assault weapon” bans may be revisited by the courts since at least some of those were based on ruling that declared the 2nd Amendment didn’t guarantee an individual right. They may or may not be able to find sufficient foothold in the Supreme Court decision to maintain their oppressive laws. It all depends on the exact wording the Supremes come up with. I expect bans on full autos, destructive devices, and suppressors will be very safe for a long time. I hope than any challenges to them are carefully and narrowly designed such that any opening created by the Parker wedge can be further widened rather than slammed shut at that level.

If the Supreme Court decides in favor of statism then things could get ugly. But the Supremes will have anticipated this too and write a ruling that gives us some sort of bone to gnaw on. Something hoped to prevent a violent response. A lot of legislatures sort of tiptoed around the 2nd Amendment issue and will be remarkably emboldened if they don’t have that shadow hanging over their heads. Things will get worse for our side fairly quickly in a lot of states with some states standing fast to our status quo at least for the next several years. In some states there is a strong constitutional guaranteed right to keep and bear arms and the main restrictions will come from the Feds. Over the coming decades the right to keep and bear arms will become just a few paragraphs in the history books or there will be a civil war fought over it perhaps fueled with some other anti-freedom decisions along the lines of McCain-Feingold or Kelo v. City of New London.

So James, there you have it. My thoughts on the Parker decision. Now let’s have a good time watching 300 this afternoon.