It’s sobering to think that those few votes in Florida in 2000 are all that stood between yesterday’s Heller victory and a 7-3 decision (with two Gore appointees to the Court instead of Alito and Roberts) finding that there’s no individual right.
Yes, Gura et al. probably wouldn’t have brought the case under those circumstances. But somebody else very well might have. I speak from bitter experience here in California, where Silveira v. Lockyer put an anti-gun decision on the books just because some idiot (and incompetent) attorney practically shouting “shall not be infringed!!!” wouldn’t heed the advice of cooler-headed gun rights groups to hold off on his case.
Happily, The Right People are behind the San Francisco suit that’s being filed against SF’s ban of ANY gun in public housing. Lead attorney Chuck Michel will be on KQED’s radio program “Forum” at 9:00am Pacific time TODAY. You can LISTEN LIVE here.
And there’s another bright spot: California may be a perfect venue to get a win on incorporation grounds, based on the way Silveira was decided:
From Gene Hoffman’s analysis at Calguns:
“Now lets turn to the infamous Silveira of 2003. Judge Reinhardt who may be the most anti gun judge on the Ninth Circuit wrote the opinion ruling against a raft of not too well argued challenges that amounted to a Second Amendment challenge. As most of us know, Silveira lost after Reinhardt tried to make the best case possible for the collect rights/Brady Campaign side. There were two very interesting things of note. First, Reinhardt admitted that Hickman may very well be wrong based on a misreading of US v. Miller so Reinhardt took it upon himself to re-argue why individuals have no standing. By court rules he couldn’t do that but we’ll skip past that. The most interesting thing for the future is this footnote quote in his opinion:
| In Hickman, we did not rely on our earlier decision in Fresno Rifle & Pistol Club, Inc. v. Van de Kamp, 965 F.2d 723 (9th Cir. 1992), that the Second Amendment is not incorporated by the Fourteenth and does not constrain actions by the states, although we noted in dictum that had standing existed, Fresno Rifle would be applicable. We undoubtedly followed that approach in Hickman because, as noted above, we must decide standing issues first. Fresno Rifle itself relied on United States v. Cruikshank, 92 U.S. 542 (1876), and Presser v. Illinois, 116 U.S. 252 (1886), decided before the Supreme Court held that the Bill of Rights is incorporated by the Fourteenth Amendment’s Due Process Clause. Following the now-rejected Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833) (holding that the Bill of Rights did not apply to the states), Cruikshank and Presser found that the Second Amendment restricted the activities of the federal government, but not those of the states. One point about which we are in agreement with the Fifth Circuit is that Cruikshank and Presser rest on a principle that is now thoroughly discredited. See Emerson, 270 F.3d at 221 n.13. Because we decide this case on the threshold issue of standing, however, we need not consider the question whether the Second Amendment presently enjoins any action on the part of the states. |
So what does this mean for us? It means that California may actually be an excellent venue to bring son of Parker. When Kozinski (who made clear he thought the Second was incorporated in his dissent to the denial of en-banc for Silveira) as well as other Ninth Circuit judges agree with Reinhardt that incorporation is likely if the Second Amendment right is individual, then competently refiling Silviera after a SCOTUS win in Paker looks like a decent strategy.”
With the emphasis on competent.
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I have a bad feeling about the veritable blizzard of lawsuits being filed to roll back various gun bans. When you have that much momentum, someone is going to start pushing back. It’s likely to attract much more lefty money to the fight, also.
Heller gave us gunnies the right to file these lawsuits, but I would have preferred to see some letters of demand go out first: it’s just possible some of these jurisdictions would have rolled over and canceled/modified those bans.
What we will get, very shortly, is a shrill counter-attack which will play right into the hands of the major lefties, who have stayed out of this fight up to now. By our sudden and sharp actions based on Heller, we have just opened the door and invited this fight to be come much larger, much faster.
I hope we are ready for it, because in some cases at least, the initial result is going to be MORE anti-gun regulations, as the various governments gin up all sorts of new ideas to see which will stick and which won’t.
A softer and slower approach might have let those sleeping dogs lie, but Pandora’s Box is now open.
Rivrdog,
Enough of the politics of fear. If these communities want to rescind their bans they can do so any time and the lawsuits can be withdrawn. WE WON!!!! Lets use that to get rid of these pernicous laws that violate our rights.
I am tired of being afraid of the gun banners. Brady Bunch has little money and they are folding. Even the valiant Paul Helmke said that the problem is not those who have carry permits since they are law abiding. He is going after the private sale legality.
Except in Cali that has not been sucedsful in the multiple states that was tried. Even Democrat MD refused to pass any anti gun rulings.
Ever since the Democrats lost in 1994 and 2004 with Kerry they are very wary of the gun voters. Chicago is the base of the radical left anti gun rhetoric and foundations that support gun control groups.
Strike while the iron is hot!
RD, I’m going to have to agree with RAH on this one.
This is not just going to be the true test of the pro-civil rights folks, but also serve to put the anti-civil rights bigots in positions of power on full display for history.
Write well and write often, to your town’s council members and executive, to your county’s council members and executive, all the way up to your federal Senators and House members. This is the time that these people need to hear from us.
Their ability to make bad civil rights decisions with their votes rest on our shoulders now. We need to educate them on the fact that we know what the gun banners want to do and that our acknowledged civil rights will not stand for their meddling. I love to use the word “Meddling” when writing my elected representatives, as it brings with it a slightly sinister feeling to your sentence (I blame Scooby Do cartoons, myself).
They see themselves as “lawmakers” and believe that they are being lazy or bad civic employees if they’re not at work “making law”. Not that I think this will do it 100% (though a guy has to have “hope”) but maybe we can convince them that refusing to make law just for the sake of making law is a bad practice.
Gently remind your local, county, state and federal lawmakers that their work is being observed by someone who stands up for their civil right to self-defense and will alert from the rooftops the 2nd Amendment respecting peoples, including legal defense groups, the moment that the bad legislation leaves their desk.
Gently remind them that suits of law are being filed and what freedoms they seek to return to the law abiding, and voting, people.
And gently remind them that while their ability to enact bad law may move more swiftly than our suits to have it removed, it will still have their name on it when it does get removed by the courts.
Looking foolish on the subject of civil rights does not do well for re-election campaigns.
Gentle reminders, written well and often, stops more bad law than anyone can imagine. We proved that just last week when the Mayor of Montesano vetoed a parks funding bill because it included a ban on legally carried firearms.
Adding a little face time to your letters was also proven to work wonders when certain groups attempted to make private sales illegal here in Washington state, and the bill died in committee after civil rights supporters showed up to watch them talk and vote.
Now we can also see if these two things can make existing law be rescinded.
There is no referee in this fight. We don’t have to let the bigots get to their feet. I, for one, am not going to let them even get an elbow underneath them.
Face on the pavement. That is the bed a bigot deserves.
And as evidence of my belief not to hold back, I present this link to a story of how Wilmette, Illinois rescinded their handgun ban in apparent reaction to Heller
http://www.nbc5.com/news/16729972/detail.html
And this quote from a minor gun banning group
“We are concerned the resources are going to be diverted to the defense of laws already on the books.”
http://www.snowflakesinhell.com/2008/06/27/quote-of-the-day-61/
They know they have lost big and they are reacting so as to save their reputations in the annals of history.
Phil, good to see you’re up & around from the ministrations of Frau Doktor!
Hate to disagree with my bud Rivrdog, but now is the time to press the enemy. San Francisco cannot afford to waist too much tax money fighting a losing case (the city is nearly broke) and the city leaders are on the ropes legally already on a number of fronts.
I think the more the people see ass-hats like Mayors Newsome and Daley stating they do not recognize rights the Supremos do will hurt them and help us.
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