Most Significant Loss to Date

I believe that Heller II or Heller v. DC is our most significant loss in court to date. It’s being picked up quite heavily by the media, and our opponents are justifiably celebrating. Understand that this is not a District Court loss. Those have become par for the course in Second Amendment cases. This is a loss of an entire federal circuit, and arguably the most important federal circuit. Gene Hoffman had a comment that I think is worth highlighting:

I really wish that people didn’t try to boil the ocean. Any one of the three issues should have had a full and separate case and be brought in the right order…

I think he’s absolutely correct here, and unfortunately this is not the only NRA-backed case that’s flawed in this manner. Benson, challenging the entire kitchen sink of Chicago regulation is similarly flawed. I would also argue that Dick Heller, while a good plaintiff for the original case challenging handgun possession, was a poor choice for going after restrictions on semi-automatic rifles. I believe NRA needs to start being a lot more careful about the battles it’s choosing to fight in Court.

While I believe the case in regards to purchase by 18-21 year olds has merit, I question of the wisdom of going after carry by 18-21 year olds at the same time. Do we really want the courts to understand the full extent of the can of worms they could be opening? We need strong rulings, starting out. What we don’t need are courts getting scared by extraneous issues we can get more easily when the case law looks more solid. Using this example, if you get courts to say 18-21 year olds have Second Amendment rights that can’t be impermissibly infringed, and you can get courts to say that there’s a right to carry, carry for 18-21 year olds flows naturally for that. It’s just not necessary, in my opinion, to bring that suit.

By the same token, I believe pursuing an assault weapons case at this point was highly premature, and said so last year when this failed in District Court. Heller II would have done far better to focus narrowly on the most onerous of DC’s requirements when it comes to the exercise of the core right. I really hope NRA re-examines its legal strategy. At the risk of hurting some feelings at NRA HQ, SAF has a far more coherent and concise legal strategy.

But that said, the greatest thing NRA will do for us, which is absolutely essential, and something SAF cannot do, is to create a political climate where ruling against the Second Amendment is career suicide for judges looking to advance on the bench. We have to get the Second Amendment community obsessed about what federal judges think about the Second Amendment. That is, unfortunately, a tall order. But it is necessary.

It is my honest opinion that if we do not take back the White House in 2012, we’re going to end up with a very weak and nearly meaningless Second Amendment right, that will never mean anything beyond being able to have a handgun in the home, with any manner of obstacles and frustrations being thrown in the way of that being perfectly acceptable by the federal courts. If we can be victorious in 2012, this ruling, as much of a setback as it is, will likely only be a speed bump on the way to turning the Heller II dissent into prevailing legal opinion.