Over at WarOnGuns, David Codrea posts in response to my post few a few days ago. I agree with several of David’s points. Namely:
As for Mr. Sawders’ letter, again, I agree it would not be advisable to send such a missive if the goal was to persuade Judge Hendren to “do the right thing.” What I reject is that anyone is capable of writing such a letter.
The judge has proven he is a creature who considers stare decisis the supreme law of the land. He will be guided on the sentencing by what the prosecution wants and what the guidelines and precedent say.
I essentially agree here. I do think there are a lot of folks out there who feel, rightly, like they are backed against the wall on the gun issue. I also agree that there is often no right case, and sometimes you have to go to court with a less than ideal case because it’s the right thing to do. What I do want to discourage is people getting themselves arrested with the intent of pushing a case through the courts. There might come a place and time for that, and when it comes, we’ll need folks like Mr. Fincher. I will post later on what the ideal first case might look like as a theoretical exercise, but David is right to point out you don’t always get to do things ideally. He’s also correct to point out:
is the court will rule it an individual right, but so narrowly, and with such deference to “compelling state interest” and “reasonable restrictions” as to make very little difference in terms of hampering new legislation to outlaw “assault weapons” again, “close the gun show loophole,” retain and share NICS data, etc., and of course, in terms of enforcing “existing gun laws.”
This is definitely something to be afraid of, and a big fear of mine as well. I’m not going to say much else about the topic of Mr. Sawders’ letter, because I don’t really want to stir up trouble within the community, and I am sympathetic to many of his arguments. We’re all on the same side, and while I think it’s good to air out differences in strategy and tactics for time to time, we need to keep our energy focused on the real opposition. Especially with the media seemingly bring gun control back to the surface in a big way.
The courts will not save us. Read the Game Over, Man. Game Over. for an explanation why.
Good read Kevin. I essentially agree, but I think there might be a possibility of chipping away at the precident in the courts with the right cases. The court’s worship of stare decisis is flawed. Precedent certainly has it’s place in our legal system, but the Constitution is The Supreme Law of the Land, not stare decisis. Some judges understand this. Justice Thomas, for instance, seems to have little respect for flawed precedent, but sadly you don’t see many lower court justices willing to overturn it, even when it clearly flies in the face of any reasonable construction of the constitution.
Justice Thomas sits in the one court where stare decisis ought to mean squat, and fundamental review ought to be taking place.
It just ain’t happening.
Look at the Kelo decision. It followed two (2) previous property-rights decisions, and Justice O’Connor – who wrote the decision in Hawaii v Midkiff even dissented in Kelo, yet Midkiff stood, and Ms. Kelo lost her home.
If you want to read another piece of mine, read Slouching Towards Despotism. I wrote it before Kelo was handed down. Read the follow-on, Sprinting Towards Despotism, too. Especially the comments.
I repeat: the courts will not save us.
Thanks for the links Kevin. This is a depressing state of affairs though. I think I need a drink ;)