Don Kates on where the legal challenges to gun control go from here
It is axiomatic that the way to have courts adopt a legal theory is to approach them with a sympathetic case. A fortiori, the way to get a legal theory REJECTED is to couch that theory in terms of an unappealing case – and the less appealing a case, the less likely your theory to be adopted.
From that perspective the argument for trying to apply Heller in the CCW context is clear – and the argument against an "assault weapon" case is even clearer. The two issues are like night and day.
THE CCW ISSUE
Some 40 states now automatically issue CCWs to all qualified applicants ("shall issue"). The criminological evidence on the results is divided 10-8: 10 studies say shall issue has substantially reduced crime; 8 studies say that it has had no effect. There is but one study – and that highly criticized – which says shall issue has increased crime.
So the criminological evidence is overwhelmingly good. To this must be added the fact that no one can or does defend the arbitrary and/or corrupt way CCWs are issued in CA, NYC and the few other jurisdictions that have discretionary CCW issuance. The anti-gun crowd believes there should be no CCW issuance. But neither they nor anyone else defends the arbitrary and/or corrupt way CCWs are issued in CA, NYC and the few other jurisdictions that have discretionary CCW issuance.
The possibilities of CCW litigation after Heller are very promising. See APPENDIX hereto.
THE "ASSAULT WEAPON" ISSUE
As different from the CCW issue as night is from day. A few people (comparatively) like AWs and want them. Everybody else loathes them and regards those who like them as either deluded or crazy. Nor does it matter that the people who loathe them are all
misinformed. If you could get them to sit still for an hour of technical explanation you might convince some of them. But you can’t get them to do that; and what you get out of trying is that they dismiss you as deluded or deranged.
Note that I say all this as a lawyer who has been involved in AW litigation for nearly two decades. The history of AW litigation is an absolute disaster. Until AW litigation occurred, Connecticut, Colorado, Ohio and Oregon had RKBA provisions in their constitutions. As a result of AW litigation in those states their respective supreme courts bent over backwards producing unprincipled theories in order to uphold AW bans. As a result of those decisions any legislative body in those states can now enact any anti-gun law it wants with a fair degree of confidence that that law will be upheld under whatever unprincipled theory was used to uphold the AW ban. (In Oregon the ban was upheld by an intermediate appellate court whose decision might not be honored by the Oregon S Ct in a future case – unless that future case involves an AW ban in which event the ban will be upheld.)
As this is written it appears that Obama will be elected. If so, we can anticipate that Heller will be disavowed just as soon as Obama gets to appoint a justice to succeed one of the five man majority in Heller. That may not be all that soon. But if the court accepts cert. on an AW ban case it may well reverse or discredit Heller right now on its own w/o any Obama appointments. And if an AW case gets to te court after an Obama appointment it will surely do so.
APPENDIX: CCW LITIGATION AFTER HELLER
[The following is part of a memorandum I wrote on this subject recently.]
The recent Heller decision1 establishes that the Second Amendment gives every law abiding, responsible adult a right to possess arms in the home. That decision recognizes that government has the power to condition the Second Amendment right on the applicant obtaining a permit – which must be granted as a matter of right to every law abiding, responsible adult. Although Heller did not involve carrying a gun, the Second Amendment right is to "keep and bear arms" and Heller does establish: that the Amendment’s rationale is self-defense; and that the word "bear" means carrying a gun. It is not clear that the Second Amendment right is to bear a handgun concealed rather than openly. But this distinction is irrelevant given California law. That prohibits openly carrying a loaded gun without a license issued by the local sheriff. Except in a few small-population counties the sheriff’s authority is only to issue a license to carry concealed, not a license to carry openly. Under these circumstances all law abiding, responsible adult applicants have a constitutional right to be issued a CCW license.