Missing the forest for all the trees...

Publicola has some thoughts on the Parker decision that seem to me to be missing the point. Even though each of his criticisms is valid and reasonable, from a gun-rights-absolutist position as I know he holds (and as I also do, albeit with more willingness to compromise), they are missing the overall point of what the Parker case is about.

Publicola calls out the Parker decision specifically for getting it wrong about the usual things: registration, concealed carry, open carry, and possession by felons (plus the insane). All of these things fall under the mantal of the reasonable regulation which Publicola fears will lead to, well, TROUBLE.

First off, you have to understand that the plaintiffs in this case were challenging specific laws, and doing so in order to maximize their chances of winning the case before an undeniably hostile court. They were challenging laws related to the purchase and possession of a functional firearm in one's home. A District law concerning carry of firearms was specifically challenged only with regard to carry that occurred inside the home.

That means that anything the court has to say that is not necessary to reaching the core ruling is dicta. Dicta has no precedential force. It is there in this decision specifically and solely to explain what this ruling is not doing. It has one and only one target audience: the judges who will be asked to overturn the ruling. It is there to reassure the judges to whom the case will be appealed that the ruling is narrow in scope and will not result in all hell breaking loose.

(Let's face it: maybe 1%, at most, of Americans will ever in their lives read a court ruling that doesn't have their name on it).

So the dicta is there to reassure judges about the narrow scope of the ruling. Why is the narrow scope a good thing? Shouldn't we be challenging everything now? Bans on concealed carry, bans on evil looking guns, bans on big and scary guns...

Simply, no. Each of those issues bring a tremendous number of complications before a judge. To rule in our favor on a challenge to a concealed-carry ban, for example, a judge would need to decide that the 2nd protects an individual right, that the individual right includes carrying a firearm, that time, place, and manner restrictions violate that right (possibly even when those restrictions are light, such as shall-issue licensing), and then for each and every hostile precedent on the issue, the judge needs to explain why the current case is different.

There are a lot of conditions there, and they ALL have to go our way to win a case. That's hard, and when we've tried it, we've usually lost.

What we need to do instead is focus our efforts on reducing the variables. We need a specific precedent that says the 2nd Amendment is an individual right. Once we have that precedent from the Supreme Court, it's no longer a variable (at least not before an honest judge); instead it's a given.

Then, we can come back with our next issue. Maybe laws banning the carry of a firearm outside the home are unConstitutional; we can replace that with a may-issue system. But then may-issue systems are unConstitutional because they are not applied equally to all; we can replace may-issue with shall-issue. But shall-issue is trying to license the exercise of a right; so maybe we'll get Vermont-carry in the end.

In each case we'll maximize our chances of winning by building on our prior established precedents and present the judges with a simple, narrow proposition that will overturn a specific, narrow law or set of laws. It seems to me the next obvious choice, once we have a favorable Parker ruling from the Supreme Court, would be to challenge the Chicago ban on precisely the same basis... with only the small addition of a claim that the states are bound by the 2nd Amendment by way of the 14th.

That's how we can make it work, step by step. If we try to go too far, too fast, we'll end up with nothing... because that is precisely how we have been trying to fight the issue in the courts, and nothing is precisely what we had before Parker.

Until we do some groundwork, we will be laughed out of court on the tougher issues. And each time that happens, the precedential pile gets bigger.

Posted on 2007-03-13 21:47:36.0 by matthew@triggerfinger.org

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