Friday, June 27, 2008

Glenn Reynolds Recommends We Pay Attention Or We'll Lose The 2nd All Over Again

by Glenn Reynolds

"'YOU Won! Now What?" is a popular book for political candidates - but also pretty much the dilemma facing gun-rights activists in the wake of the Supreme Court's opinion yesterday striking down the District of Columbia's gun ban.

It's a happy dilemma, of course. I'm sure that many gun-rights supporters never thought they'd live to see a Supreme Court opinion to the effect that "Held: The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home."

I confess that I was one of the Second Amendment scholars who doubted that there were five votes on the high court to support an individual-right view of the Second Amendment.

I'm happy to be wrong about that, but there were only five such votes - demonstrating how narrow the margin was, and how out of touch the court is with the American public, which believes the Second Amendment protects an individual right to arms by a 3-1 margin.

If, as some have been calling for, we had a "Supreme Court that looks like America," this case wouldn't even have been close. Ordinary Americans have generally believed that the "right of the people to keep and bear arms" applied to, you know, the people.

It takes politicians, law professors (and, it turns out, four Supreme Court justices) to believe that a "right of the people" somehow actually doesn't belong to the people at all.

The individual rights-view finally won out, but just barely.

But winning in the Supreme Court is just the beginning of the story. Even the biggest civil-rights victories have taken years to percolate through the lower courts, often in the face of foot-dragging or outright resistance from lower-court judges, states and municipalities.

Brown v. Board of Education declared racial segregation unconstitutional in 1954, but it took a decade or more of slogging to make its promise bear fruit - and even then Congress had to give things a boost by passing the 1964 and 1965 Civil Rights Acts.

By contrast, in the 1990s the Supreme Court decided a series of cases narrowing Congress' powers to regulate all sorts of things under the rubric of "interstate commerce." But there were no hordes of public-interest lawyers to pick up on those decisions and bring new cases in the lower courts.

Without that pressure, the lower courts were free to ignore the Supreme Court's efforts to cut back on federal meddling - and that's what they did, to the point that some called it a "constitutional revolution where no one showed up."

If the Supreme Court's Heller decision is not to meet the same fate, Second Amendment enthusiasts will have to start bringing, and carefully litigating, follow-up cases so as to ensure that Second Amendment rights don't wind up championed mostly by "ugly" defendants such as drug dealers facing firearms charges.

Is the gun-rights movement mature enough to follow through on this week's victory? We'll find out."

Glenn Reynolds is a law professor, so of course he is confused about what a law is. And guns? Fuggedaboutit. As far as I can tell, most lawyers view the law as a convenient way to make money by doing nothing much than arguing over the obvious. Law school teaches them how to win, not how to respect law or we wouldn't be burdened with millions of ambulance chasers. Or corrupt politicians who've learned to lie better, for that matter. It was lawyers turned politician who decided that the 2nd Amendment really didn't refer to "the people" even though it did just that, lawyers turned politician who hit upon the idea to convince minority groups that raising kids who killed one another wasn't a bad thing because they wouldn't be doing so if it were not for guns, and on and on.

The preponderance of evidence clearly showed the Framers state of mind and intent in creating the 2nd Amendment, and leave it to a lawyer to think that criminals using guns in a bad way will make law abiding folks look bad. But whatever works, right? Just try to employ the same logic in banning cars because some like to drive when drunk, but good luck. If the soccer mom's can't get to practice they'll tear your throat out.

And last but not least, Glenn lad, in case you haven't been looking and its obvious you haven't, we've won victory upon victory as of late by fighting our asses off to regain what the clueless thought we shouldn't have in the first place. Most states allow concealed carry, more and more are creating Castle Doctrine's, normal capacity magazines are once again okay for the common peon to own, and the list goes on and on.

All of this didn't happen because we were reticent to express our opinions, Glenn. So thanks for the day-late, dollar-short, painfully obvious advice. But guess what? We thought of it all by our lonesome and didn't need a law professor who hasn't been paying attention to charge for it.

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