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View Full Version : "The Power of Patience" by Don Kates


GrizzlyGuy
10-23-2009, 11:59 AM
http://www.handgunsmag.com/HG_pop_200911/index.html

Conclusion: "It took 30 years, and countless Supreme Court cases, to eradicate legislation against Jehovah's. It will take at least that long to patiently pile up precedents until we can win an assault weapon case under the right to keep and bear arms."

30 years is a long time. Kind of makes you want to pack up and move to a free state, eh?

bwiese
10-23-2009, 12:49 PM
Don Kates is in general right on the broad "poisoning" of the issue's politics.

Don's article also contains a message for gunrights amateurs not to file stupid (Silviera- or James-style) cases.

However there are properly structured AW cases that can be based on "small issue" attacks - esp trivia about pistol grip or thumbhole stock matters. If even moderately rational judges see a Mini14 in a regular stock and its caliber & fire rate, and then see the same gun with folder stock and/or pistol grip operate identically, many concerns can be mooted.

Furthermore, Heller does allow guns that are not "dangerous and unusual" and the AR etc are amongst the most common guns in circulation and commercial sale. To regionally restrict such ordinary guns via locale flys in the face of Heller.

The incorporation case will not invalidate Heller, which is settled law. I am confident we'll get, at the end, at least somewhat higher than intermediate scrutiny.

hoffmang
10-23-2009, 7:19 PM
I love Don Kates dearly but he is of an earlier generation in the battle for gun rights. He created the modern pro-gun scholarly and legal movement but he took a tremendous number of arrows in the back. The Jehova's Witnesses cases he's talking about were in the 1930's when communications technology was not nearly so fast. Courts still move slow compared to internet time, but they move years - maybe even decades - faster than they did 90 years ago...

And remember, Stephen Halbrook is already challenging DC's AW ban imported from California...

-Gene

B Strong
10-24-2009, 7:37 AM
I remember years back reading a piece about the differences in theory wrt a pratical approach to Second Amendment cases. One approach was to throw every single case that came down the pike into litagation, and the other approach was to wait for that perfect case that would make our opponents fold.

I subscribe to the second approach.

If we've learned anything from Gorski et al, (the current Hamblen case comes to mind too) is that the wrong case with the wrong representation can do so much more harm than good that you'd wish these guys would retire and go fishing.

I agree with Gene about the power of modern communication pushing things faster than Don's estimate, but we have to accept that our cause might be more like a dialectic march (two steps forward, one step back) than a landslide.

ilbob
10-24-2009, 9:49 AM
I tend to believe the 3 decade time frame is about right for dealing with the majority of 2A issues.

I see a number of issues that need resolution and if they are taken in series, as they probably have to be, 30 years is about how long it will take to get them through the SCOTUS.

Heller established several things:

- that the right is an individual one
- that gun ownership for self defense is a constitutionally protected right
- gun ownership (at least those kept at home) is pretty close to a right that really cannot be infringed, although one can by one's own actions lose that right (felons, etc.)

I particularly like the idea that gun ownership for SD is protected. That gives very strong support to the idea the SD is a protected right as well. That ought to eventually get rid of any state laws requiring retreat for instance, or that impose civil liability on legitimate acts of SD.

The next issue is incorporation.

Then bearing of arms.

Level of scrutiny.

Somewhere down the road - what "arms" are protected?

bulgron
10-24-2009, 11:55 AM
If we lose the pro-gun majority on the court, it could be 70 years before we get this law settled. After all, we won't be pushing cases up to SCOTUS if we know a bunch of living constitutionalists are sitting there just waiting to null and void the entire right.

hoffmang
10-24-2009, 12:36 PM
Most of the naysayers expected us to lose Heller...

This will not take 30 years. There will still be litigation on this issue in 30 years but the issues will be at the margin.

Obama leads Huckabee by 3% in polls today. Huckabee? Think about how far the popular have fallen. As such its looking more likely that a Republican can win the White House in 2012 (though leave it to the Republicans to start getting the Libertarian Party electability reputation.) That may mean we in fact expand the Heller majority. However, the downside case is looking far more rosy.

-Gene

forgiven
10-25-2009, 12:17 AM
Huckabee, a Republican Clinton! Please, no.

dantodd
10-25-2009, 12:41 AM
I believe if there is no change, or positive change, to the SCOTUS 30 years is a much too conservative estimate of the time it will take to roll the laws back to a reasonably free state.

However; if the court shifts away from 2A and we don't get a supporter of 2A in the white house in 2012 it could well be many decades before we see a normalization of the RKBA. While Gene is right that cases are brought and move much faster today than they did in Don's youth the same cannot be said for SCOTUS justices. They live at least as long as they have in the past. If something happens to one or two of the "Heller 5" in the next 2 years and they are replaced with young anti-2A justices we are in a slowed down for decades.

That isn't to say that they would necessarily deny Heller stare decisis but they would likely take the most restrictive interpretations of it possible. (Though I wouldn't fully count out a reversal of Heller either.) For example any place people congregate may be interpreted as a "sensitive area." This means that the NRA et. al. will spend a lot of time fighting against lawyers who are trying to bring cases that could set precedence against us. We will be in a holding pattern for many items just because we don't want bad decisions on the books we'll try and wait out a few justices until they retire or die.

Gray Peterson
10-25-2009, 5:28 AM
Why do you think we're trying to get as many cases up to SCOTUS as we can? Palmer v. District of Columbia, Sykes v. McGinness. Bearing arms is already being addressed now. I predict that bearing arms on a national level will get fixed within 3-4 years, max.

As for the prediction that an "Obama appointee=antigun". I think we'll have to wait until McDonald before we know if Obama's first SCOTUS appointment is truly anti-gun to the core. Luckily we'll have an answer on that within 9 months.

yellowfin
10-25-2009, 7:51 AM
She wouldn't have been appointed if she wasn't.

bulgron
10-25-2009, 11:56 AM
She wouldn't have been appointed if she wasn't.

Never discount the possibility that Obama simply wanted to appoint a justice who hit all the right "checkmarks" (woman, latino, wise) and he didn't really look all that deeply on how she will decide issues.

What I mean is, the Obama administration has shown itself to be shockingly incompetent at everything except getting elected. They seem particularly good at making decisions that have all sorts of unintended consequences.

Sotomayor is probably anti-gun to the core. But we won't really know that for sure until she has a chance to weigh in on a couple of gun cases.

yellowfin
10-25-2009, 12:48 PM
I would believe the guy in the White House to be totally incompetent if his goal were prosperity, order, and promoting our country. It seems obvious his intentions are otherwise.

artherd
10-25-2009, 1:33 PM
If Don Kates is a chemical reaction, Alan Gura is the catalyst.

This will not take 30 years. Not anymore.

-Ben.

Meplat
10-25-2009, 2:29 PM
All else being equal, I think a great deal of the pace will be dictated by what judges get appointed.

I love Don Kates dearly but he is of an earlier generation in the battle for gun rights. He created the modern pro-gun scholarly and legal movement but he took a tremendous number of arrows in the back. The Jehova's Witnesses cases he's talking about were in the 1930's when communications technology was not nearly so fast. Courts still move slow compared to internet time, but they move years - maybe even decades - faster than they did 90 years ago...

And remember, Stephen Halbrook is already challenging DC's AW ban imported from California...

-Gene

Meplat
10-25-2009, 3:00 PM
I disagree that loss of rights is dependant on one's own actions in all cases. Restraining orders are a case in point. I agree to positive implications for a right of self defense but do not believe that was in dispute to start with and see no bearing on duty to retreat.


I tend to believe the 3 decade time frame is about right for dealing with the majority of 2A issues.

I see a number of issues that need resolution and if they are taken in series, as they probably have to be, 30 years is about how long it will take to get them through the SCOTUS.

Heller established several things:

- that the right is an individual one
- that gun ownership for self defense is a constitutionally protected right
- gun ownership (at least those kept at home) is pretty close to a right that really cannot be infringed, although one can by one's own actions lose that right (felons, etc.)

I particularly like the idea that gun ownership for SD is protected. That gives very strong support to the idea the SD is a protected right as well. That ought to eventually get rid of any state laws requiring retreat for instance, or that impose civil liability on legitimate acts of SD.

The next issue is incorporation.

Then bearing of arms.

Level of scrutiny.

Somewhere down the road - what "arms" are protected?

Meplat
10-25-2009, 3:13 PM
Exactly. But some are always two or three switches behind the pea.

I would believe the guy in the White House to be totally incompetent if his goal were prosperity, order, and promoting our country. It seems obvious his intentions are otherwise.

hoffmang
10-25-2009, 4:14 PM
All else being equal, I think a great deal of the pace will be dictated by what judges get appointed.

Losing in the lower courts gets you to SCOTUS faster...

-Gene

Meplat
10-25-2009, 5:48 PM
Hummm....

Thanks!

Losing in the lower courts gets you to SCOTUS faster...

-Gene

Meplat
10-25-2009, 6:03 PM
However I was thinking more along the lines of SCOTUS.

Hummm....

Thanks!

dantodd
10-25-2009, 6:36 PM
Why do you think we're trying to get as many cases up to SCOTUS as we can? Palmer v. District of Columbia, Sykes v. McGinness. Bearing arms is already being addressed now. I predict that bearing arms on a national level will get fixed within 3-4 years, max.

I believe there will be plenty of rights that will still need to be adjudicated beyond those in Heller and Palmer/Sykes. I do not know how much guidance the court will give lower courts on issues outside of those at hand. I have no reason to believe the court will address a definition of "dangerous and unusual" for example. This will likely mean another case for SBSs in CA with an NFA stamp or against the AWB. (just to name one.) I am confident that you are right wrt bearing arms (i.e. CCW or LOC being available nationwide) but that is not the whole 2A pie.


As for the prediction that an "Obama appointee=antigun". I think we'll have to wait until McDonald before we know if Obama's first SCOTUS appointment is truly anti-gun to the core. Luckily we'll have an answer on that within 9 months.

I highly doubt that a president who is strongly anti-gun is likely to appoint a strong advocate of the 2A to the bench. We can look at the 2A stance of his other appointees for some idea of this. I do not feel that McDonald is a significant test of a justice's stance on 2A. McDonald is likely to be much more about normalizing civil rights and likely about reviving the Privileges or Immunities clause of the 14th amendment. As I have said in previous postings I would not be surprised to see 9 justices in at least one concurring all voting for some form of incorporation. Justice Sotomayor's vote on Palmer is a much more likely indicator of her position on 2A than her vote on McDonald, imo.

hoffmang
10-25-2009, 7:43 PM
However I was thinking more along the lines of SCOTUS.

Then the math is even simpler. One of the Heller 5 has to die an unnatural death before November 2012 at this rate.

-Gene

ilbob
10-26-2009, 4:28 AM
She wouldn't have been appointed if she wasn't.

I think he appointed a light weight. It may turn out that being around some serious guys like Thomas, Scalia, et al, that she can be persuaded. There is just no way to know.