I like to imagine that once we reach some critical threshold in the courts the victories will be almost automatic and our opponents will scatter like rabbits at the sight of a large predator. It may be true that we reach that point but we aren’t there yet:
The latest example is a decision late Thursday by the U.S. Court of Appeals for the Tenth Circuit, which said that a criminal defendant may not be allowed to present a Second Amendment defense to a federal jury in Utah. It came after the appeals court granted an extraordinary emergency appeal, called a writ of mandamus, from the Justice Department after the district judge agreed to allow those jury instructions.
The defendant, Rick Engstrum, has an earlier misdemeanor domestic violence conviction and has been charged with possessing a firearm in violation of a federal law that applies to anyone “who has been convicted in any court of a misdemeanor crime of domestic violence.” He has pleaded not guilty.
(The prosecution arose when Engstrum broke up with his girlfriend, who subsequently told police that he had a gun in his bedroom. Engstrum voluntarily showed police the gun, which he inherited from his father; there’s no evidence he has ever used the firearm, let alone threatened anyone with it.)
Engstrum, reasonably, wanted to argue to the jury that the Second Amendment renders that law invalid, at least when applied to people who show no risk of future violence. (Remember, this is a Utah jury, which raises the odds that jurors are familiar with the right to keep and bear arms, and may even have heard of the concept of jury nullification.)
The Justice Department rejected this idea out of hand. By a 2-1 margin, a Tenth Circuit panel agreed, concluded that the Second Amendment didn’t apply, and prohibited those jury instructions. “If the case proceeds to trial, the district court is directed not to instruct the jury on this Second Amendment defense, including not giving the proposed jury instruction,” they wrote.
The defense isn’t allowed to even bring up the Second Amendment.
We need incorporation and then we need to attack a whole barge load of infringements one tiny step at a time. The Heller decision was just the tiniest of steps in the right direction.
There is a lot of work ahead of us.