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Convincing the Legal Community

An important part of building success for the Second Amendment, over the long term, rests in making good arguments within the legal community. We lament the current state of federal rulings in Second Amendment cases, but it’s worth noting that most of the judges on the bench today spent most of their careers believing the Second Amendment was a meaningless anachronism, and old habits die hard. There is a chance with the next generation. Jonathan Goldstein has an article in The Philadelphia Lawyer discussing the issue of gun rights in a way that’s not going to come off as mouth foaming to the uninitiated:

These and other uncertainties in the law must be clarified. Gun owners working hard to comply with the law shouldn’t have to live with the constant threat of prosecution for vague offenses or uneven application of the law. Instead, our statutes and regulations should serve as a clear guide to help principled gun owners comply with the law.

In short, if we treat law abiding gun owners as the respect-worthy citizens that we are – mainstream people exercising a constitutionally protected civil right – we can find common ground to keep guns away from inappropriate people and demonstrate to any observer that compliance with the law is worth the trouble.

As they say, read the whole thing. I know a lot of people aren’t comfortable with the idea of “inappropriate people,” but “gun rights for felons and schizophrenics” isn’t a hill I think most of us are particularly keen to die on, especially not in publications meant to persuade the legal community.

17 Responses to “Convincing the Legal Community”

  1. Brad says:

    Good point about the generational aspect of sitting judges. I bet most of them grew up during the era when popular support for banning handguns peaked.

    But we can’t wait another 30-50 years for more reasonable judges to replace the current buffoons. This will have to be a top down revolution, imposed by SCOTUS upon resistant lower courts. I just hope Gura is up to the challenge. I’m getting awfully tired of seeing SCOTUS dodge case after case since the 2010 ruling of McDonald v Chicago.

    • Sebastian says:

      Me too, but we don’t know the reason they are doing that yet.

      • HSR47 says:

        At this point, I would stipulate that the reluctance of The SCOTUS to take more 2A cases at this point, especially given that the last few have been focusing on the “bear” aspect, is due to one or more of the following:

        1: They want a clear-cut case involving an outright ban. With Chicago/Illinois failure to appeal, that leaves the DC case (which has been waiting for a ruling from a lower court for the last ~4 years) as the most viable case.

        2: The administration is putting the screws to the justices, perhaps going as far as blackmail (which is par for the course with Chicago Democrat Machine politics). It’s also possible that various government agencies/programs were used/abused to dig up dirt on members of the court.

        3: The justices don’t believe that the time is right for more second amendment cases.

        Personally, I think the first and third points above have a great deal of merit. The second point also has merit; We’ve seen what this administration does to people that embarrass it (If any other administration within the last 30 years had punished anywhere near this number of whistle-blowers, it likely would have lead to the removal of the executive from office, either through resignation or impeachment), we’ve seen how shamelessly corrupt it is, and the abuse of authority to dig up dirt on political figures has pretty much been the rule in DC since J. Edgar Hoover was in charge of the FBI.

  2. Skullz says:

    I don’t think equating felons and schizophrenics is a good thing to do.

    As I’ve said before in comments on this blog, If you can’t be trusted with a gun, then you can’t be trusted without a minder.

    So, in the case of a diagnosed schizophrenic, if they are a potential threat to society, they shouldn’t be left alone. Thats not to say they should be committed town institution and restrained to a bed.

    For felons – if you’ve served the sentence, your rights should be restored. Period. Otherwise, you’re sentence isn’t complete. And no one should be handed a life sentence, unless they are incarcerated.

    I feel the same way about any rights. As a matter of fact, Richard Scrushi was just real eased (the HealthSouth guy) after 70 months. And the judge says that he may not ever work for a public company again. I see that and the lack if rights restoration in the same light.

    All that said, we’re not ready to “die on that hill”. Yet.

    • Sebastian says:

      The problem is, it costs money to keep people in prison and even more money to keep them institutionalized. So there’s always going to be a bit of catch and release with criminals and “outpatient” mental health treatment with people who are mentally ill. Unless as a society we decide we really do have to pay for these things, which is unlikely. I get that’s not ideal, but it’s what’s happening, and what’s going to continue to happen.

      • Skullz says:

        Agreed. But then, if we agree to the risks, we agree to the consequences. Freedom and liberty is scary, and it doesn’t come without risk or cost.

      • HSR47 says:

        Re: cost of incarceration:

        I think this is another big argument against prohibition. What percentage of the current U.S. prison population is currently incarcerated for offenses relating to the trafficking of prohibited intoxicants?

  3. Archer says:

    Very well-written article. I particularly like how he states that lawful gun owners already bend over backwards to comply with the law, therefore implying that additional laws disproportionately affecting them are attempts to see their backs broken (figuratively speaking). The bucket analogy is excellent, and a great place to start that “meaningful discussion” we’re all supposed to have.

    Also enjoyed the part where the “anti-gun” voices complained that enforcing straw purchase laws is hard. Yes, yes it is. But even if it’s made “more illegaler,” guess what? It’ll still be hard to enforce, meaning that prosecutors won’t, meaning that the net effect falls solely on the law-abiding.

    Excellent link!

  4. JBiros says:

    As a felon, you forfeit your rights, even after your sentence is complete, the fact is felons are often repeat offenders, maybe there should be a way to earn the right to firearm ownership back.

    Let the hate messages begin…lol.

    • Skullz says:

      There may have been some justification to keep felon’s rights restricted when so many different crimes weren’t felonies. Felonies were left to the most egregious offenses, mostly the violent offenses, and crimes so reprehensible that the fact they were committed should follow you around for the rest of your life.

      However, nowadays there are lots of non-violent crimes that are considered felonies. Stupid mistakes as a youngster can bar you from defending yourself or your family for life. There is no lesson learned or benefit to society that says an 18 YO kid who got caught with an ounce of reefer 18 years ago and hasn’t had so much as a traffic ticket since is a threat to society.

      • Matthew Carberry says:

        Yep.

        I think the most successful direction to go is to see how the Supremes rule in Castleman, and continue to redefine felony back to “rationally related” “violent felony” at the state and Federal level.

        The Congress could likely do that on their own, which would be the better way. Also push to refund and streamline the rights restoration process, for both criminal and psychological prohibiions, at the Federal level and push to have it made more effective and usable at the state level.

        All of this can be sold to the general public as motivated by “fairness” and as “socially just”, particularly in addressing the disparate impact on minorities in the justice system and analogized to rights restoration for voting, etc. Put the onus on the anti-gun libs to explain why they hate minorities and the mentally ill and fear them having the same gun rights as everyone else.

        All or nothing with an absolutist justification simply isn’t going to succeed politically here in the real world. We have to work a salable angle and using the “social justice” narrative is the proper Alinskyite technique.

    • Sebastian says:

      Way back when, felonies were almost universally capital offenses. If you committed a felony, you were generally deprived of your life, unless you were lucky. But today you can earn felonies for trivial offenses.

      • HSR47 says:

        This largely results from mixing an archaic definition of “felon” (defined by length of sentence, and not the actual severity of the “crime”) with the modern views on acceptable sentencing.

        Traditionally, lengthy prison terms were exceedingly rare, and thus only truly serious crimes were punished by more than one year of jailtime. These days that is no longer the case, yet we still use the same archaic definition of “felon” for the purposes of our laws restricting the possession of firearms.

    • HSR47 says:

      It is my understanding that felon-in-possession laws really only came into being during prohibition: It was how the police got their boots in the door so that they could perform warrantless searches.

      • Sebastian says:

        Not really until 1968. The 1938 Federal Firearms Act, which was after prohibition was repealed, made it illegal to ship a firearm to certain felons in Interstate commerce, but the idea of prohibited persons didn’t come about until 1968. Felons in possession depends on an interpretation of the commerce clause that was more questionable in the 1930s than it was in the 1960s.

  5. Gerald says:

    “Gun owners working hard to comply with the law shouldn’t have to live with the constant threat of prosecution for vague offenses or uneven application of the law.”

    I can’t help but to recall the saying, “It’s a feature, not a bug.” Many of the people who author these laws are perfectly okay with gun owners living with the constant threat of prosecution. In their minds, it deters people from buying guns and achieves their goal reducing the numbers of legal gun owners.

    • Brad says:

      Exactly right.

      The slow boil strategy has been an intrinsic feature of the legislative campaign by the gun prohibitionists from the very beginning and continuing until today, an unbroken thread from the National Coalition to Ban Handguns up to the Legal Community Against Violence.

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