Randy Barnett of The Volokh Conspiracy pointed me to a two part series by Dave Kopel published on National Review Online. The first piece is called Secret Weapon: Some 2nd Amendment lawyers help the gun-ban side. The second is called The Silveira Threat: How long will the Second Amendment live?.
Both are arguments against direct second amendment challenges in court based on the premise that most courts are anti-second amendment & therefore will do more damage (by creating bad case law) than good (by repealing gun control laws). They further say that a particular case - Silveira vs. Lockyer - is far from being an ideal case to bring before the Supreme Court.
Starting with the first one, we find the tale of a case challenging the handgun ban in Morton Grove, Illinois. The case was Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982) .
Dave Kopel states that because Quilici raised second amendment issues Morton Grove was able to move the case from a state court, where Mr. Kopel feels there was more solid legal footing, to federal court. The NRA asked Quilici to retract the second & fourteenth amendment issues from his case so it could be moved back to state court, but Quilici refused. Mr. Kopel then tells us about the blatant bias of the presiding judge in the case who wrote the decision which upheld the handgun ban as being constitutional under the Illinois & U.S. constitutions. A challenge to the handgun ban eventually did reach the state court, but Mr. Kopel is under the impression that because of the loss in federal court the states court decision was influenced against the plaintiffs who sought to end the ban.
Mr. Kopel then suggests that a more appropriate strategy would be to imitate what the NAACP did from the 1930's through the 1950's. More or less a winning through incrementalism strategy, where only certain cases involving peripheral issues are taken, then after those peripheral issues are settled in their favor do they take on the main issues they seek to address. The idea is that if you move too fast, then you risk being knocked back further than where you began, so you take things slowly - one issue at a time & you must pick & choose the cases you bring before the courts as well as choosing the most sympathetic court possible.
Now from what I understand the attorney Quilici may not have been the most capable lawyer to bring an issue before the court. However the constitutional questions he raised were not dependant upon his skills at oration, or his GPA from law school. They were very simple challenges to the handgun ban. In essence Mr. Quilici argued that the handgun ban violated Article 1 Section 22 of the Illinois Constitution & the Second, Fourteenth & 9th Amendments to the U.S. Constitution.
A judge or jury should have been able to look at the respective constitutional provisions & decided without comment from the counsels if they were prima fascia violations of those provisions. Not that I'm opposed to the adversarial process we have in our legal system, it's just that cases should be decided on the merits of the law, not on the skill of the attorneys at arguing law. Granted, neither judge nor jurist is expected to know every stroke & dash of all laws, but we're not talking about an issue where the applicable law is obscure.
But I'll grant to Mr. Kopel that Mr. Quilici may not have been as competent as he should have been.
To talk about Quilici vs. Morton Grove for a second, I'm in disagreement with several things about this case, not the least of which is the conclusion. For starters Mr. Kopel does seem correct in that Judge Bauer had a decided bias prior to hearing the case, & because of that bias he should have recused himself from the case. Also the proper course of action for this federal court would have been to hear only the federal issues & left the state issues to the state courts. By hearing the state issues & interpreting the Illinois Constitution the 7th Circuit over stepped their bounds.
But with or without any negligence on the part of Mr. Quilici, the culprit here, the one who made this case a victory for the anti- gun side, was not the attorney who brought the case to trial, but the judges who decided against a fundamental Right in favor of a city's power.
Mr. Kopel should be implying that Judge Bauer, not Mr. Quails, is the one who betrayed us.
Further, Mr. Koppel’s assertion that a state challenge would have fared better if it preceded the federal case is a bit of a stretch. Here's why:
"Article 1 SECTION 22. RIGHT TO ARMS
Subject only to the police power, the right of the
individual citizen to keep and bear arms shall not be
According to the Illinois Constitution the Right to Arms is an individual one. But 6 words make it a useless distinction. Those words are, "Subject only to the police power...”
That basically means that an Illinois citizens' Right to Arms is protected, unless the state feels it shouldn't be. The police powers of a state are very broad & encompass many things. By saying that the Right to Arms is subject only to the police power, they are essentially saying that the state has the ultimate & final say over the Arms of any & every individual.
The Illinois Constitution's provision dealing with arms is perhaps the worst I have ever seen. Mounting a defense based on it would be akin to trying to stop an army on 3 sides from taking the low ground that you're on.
So to be honest I doubt that the federal case made much of a difference.
I'll address the wisdom of the NAACP-type strategy in a bit.
In the second piece Mr. Kopel starts off by portraying the Silveira vs. Lockyer case as having caused damage to the pro-gun side (because of the 9th Circuit’s ruling) & being capable of causing much more. Mr. Kopel then briefly contrasts Silveira with Hunt v. California a case brought by the NRA challenging the California Assault Weapons Ban on regulatory issues. Mr. Kopel then resumes pointing out the flaws with Silveira & to a large extent, Silveira's attorney Gary Gorski.
Mr. Kopel feels that because of the hostile make up of the 9th Circuit & the Supreme Court, that the Silveira case was a mistake to press. In his mind a better strategy would have been to avoid the 9th Circuit altogether, or to follow the NRA's lead in bringing up peripheral issues such as the vagueness of a regulation.
For starters the second, ninth & fourteenth amendments have been in our Constitutions for a long while, the former preceding any federal gun control laws & most state gun control laws. Hell, the former amendments precede most states! (While I feel that the fourteenth was ratified in a manner contrary to what was prescribed in the constitution for the ratification of amendments I do feel it was & is an appropriate amendment & one that should be repealed on procedural grounds, but immediately offered up again for proper ratification. As it stands the fourteenth amendment is considered valid by most courts so that's a battle to fight another day.)
So with amendments acknowledging our pre-existing Rights being in effect long before the laws in question I do not think the proper course of action is to wait any further before an attempt is made at negating these laws that are violative of our Rights.
Here's where the NAACP strategy deviates enough from the proposed second amendment strategy advocated by Mr. Kopel to not be of any use to us:
The NAACP was not attempting to assert Rights acknowledged by the U.S. Constitution from the days of the founders. The NAACP was attempting to apply the Equal Protection Clause of the 14th Amendment to end segregation & discrimination based upon race. In essence they were trying to make their ideal social policy into a protected Right. They were creating law! They used the power of the courts to compel the federal government, the respective states & even individuals to abide by what they considered to be an ideal social policy. Whether this was good or bad is arguable. Not from the perspective that black people should or should not be discriminated against, as I feel that race is not a valid basis for character judgment, but from the perspective that it may have been better to educate the public (& destroy racial prejudice at its roots) rather than use the courts to eliminate discrimination (destroying the symptoms of racial prejudice).
What the pro-gun side is attempting to do is not create new law where there have only been implications, but rather enforce existing law to the advantage of individual choice. There are few radical arguments supporting our position that were not uttered 100, 200 or even 2,000 years ago. The only change is in the technology of arms. The principles are still the same.
So I fear because of this very dramatic difference, the strategy that was so successful for the NAACP would not work for us. The NAACP had very little to start out with & gained much. Whereas we had much to start out with & are losing much. Taking this very slow, incremental approach will not help us, as the problem we face is not creating new law, but stopping new laws from destroying the old laws.
Now as to the opinions that we should at least wait till more favorable courts are in place to make any significant cases, when will that be? When federal law requires all guns be registered & only revolvers, shotguns & rifles with a capacity of 5 rounds are legal will we find ourselves with more sympathetic jurists? When all semi-automatics are banned & the remainder of our arms must be stored at gun clubs will a champion of the Right to Arms then show his/herself on the bench?
No. By waiting we hurt our cause. Every day that a law prohibiting Arms is on the books is one more day that a judge will have to consider that the law was unchallenged. Know of any 30 year old laws that have been declared void for constitutional conflicts? The longer a law is on the books the harder it is to be negated. This can be as much due to a lack of challenges as it can be attributed to unsuccessful challenges. So by waiting we give the anti gun side time. Time is something they have an abundance of & it is to their advantage to run the clock down as much as possible.
The only ones who are served by waiting are the gun prohibitionists & the NRA (The NRA because it is my belief that they don't want the pro-gun side to win any decisive victories as that would endanger their job security. That's the NRA leadership, not the NRA members who I'm afraid have been conned by the NRA leadership).
& ultimately I do not care of the court seems more favorable to the pro-gun side or the anti-gun side. If a good second amendment case is brought before a judge or judges with a direct second amendment question & not the usual side issues that NRA litigation relies upon, then we have done our job. If the court decides favorably for our side then that's definitely a good thing. But if a judge decides against our side then I don't blame those who brought the case. I blame the damned judge who disrespects not only the Constitution he/she swore to uphold, but my Rights, which are the basis of that Constitution.
To blame the attorney who attempted to Right a legislative wrong for a judge's hypocrisy & treason is no damned different than blaming a woman who got beat up even worse because she pressed charges against her boyfriend for slapping her. The piranha-like nature of those who claim to be on our side amazes me sometimes - when someone attempts to do something to further our cause, they are often torn apart by those who claim to be on our side who are either too timid to attempt such a bold move or whose interests lie in continuing the struggle as opposed to resolving it.
I admit I'm a bit more radical than most on this issue. I've even been called rabid at times when it comes to the Right to Arms. But if a legislature, governor, president or court wishes to make, enforce or uphold laws that deny me of my Rights, then let them. I'm sick of all their skulking around, prohibiting Arms piecemeal. I'd much rather they get their intent out in the open & begin implementing it. That way we not only know who the traitors are, but won't have to wonder what their object is. In the end I think that would galvanize more support for our side than anything else.
I read someplace someone's thoughts on the possibility of a revolution happening in the United States again. He was advocating it, even hoping it would hurry up & start. Someone asked him if he did not know the horrors of war, especially that type of war. His response was that he did, but he would much rather endure those horrors for the sake of freedom than leave it to his children or grandchildren to face them.
Mr. Kopel criticizes Mr. Gorski for pushing Silveira all the way to the Supreme Court. Some of his criticisms of the case are valid, such as the fraudulent quote often attributed to Hitler at the beginning of Mr. Gorski's initial filing of the case. Other criticism are less solid, such as the assertion that because Mr. Gorksi failed to file a reply to the 9th Circuit, that they got away with invalidating only part of the Assault Weapons Ban when the law forbids such separation (when one part of a law is struck down, the entire law must be struck down). To this I lay blame on the judges, who should know the law, not Mr. Gorski, who has argued that a reply would have accomplished nothing. Also Mr. Kopel doesn't acknowledge that this could be an important issue that causes the Supreme Court to hear the case & decide in Mr. Gorski's favor. The rest seem to be criticisms of Mr. Gorksi for not towing the NRA line (litigate all you want, just don't mention the second amendment directly in case they agree with you). It implies an elitism that only Mr. Kopel & a handful of other attorneys are competent enough to point out 27 words in the Constitution & explain what they mean.
So I disagree with Mr. Kopel that Silveira could be damaging to our cause: a judge’s decision could be damaging, but not any more so than the legislature's decisions are several times a year. We lose by trying to emulate a strategy that is successful in other circumstances that don't resemble ours. We further lose by condemning those who attempt to fight for our Rights solely because the NRA doesn't like the way they proceed. We are fighting to protect something that is already acknowledged by the Constitution. Nationally we've waited since 1934. In some states we've waited for over 100 years. I am not content to wait any longer, especially when the reason for that wait may not be to our advantage, but to those whose salaries & pensions depend upon the struggle continuing.
Silveira is not the perfect case. But it is not the worst one we've seen either. I have no problems with letting Silveira being heard by the Supreme Court. Either way we'll get an answer. After that we can plan our next move. But damn this holding our collective breath & praying that the stars will line up just so. We need to start fighting gun control now.
Dave Kopel also links to this interview with Mr. Gorski, which I found most interesting.
& in case you haven't heard (read?) already, an unusual development has happened in the petition for writ of certiorari for Silveira: California had declined to respond to the Supreme Court, which is merely their chance to argue for or against the Supreme Court hearing the case. But The Supreme Court has asked them to respond anyway.
This could mean three things: The Supreme Court will hear the case unless some unusually persuasive argument from California changes their mind, The Supreme Court will hear the case regardless but they wanted California to add some arguments for their consideration, or they're looking for an excuse not to hear the case & are hoping California can provide one. So it's inconclusive, but it does tend to lean more towards them either seriously considering hearing the case, or having decided already to hear the case, as it's very easy & common for the Supreme Court to simply decline a case.
So on the outside chance that Mr. Kopel or any of the attorneys he mentions as being preferable to Mr. Gorski actually reads this or talks to anyone who reads this, I would advise you to put your condemnation of Mr. Gorski aside long enough to offer him any & all assistance you can. If you feel his arguments are in error in some degree then approach him & offer advice on how to correct it. & it wouldn't hurt to offer any help that, as an attorney, you are able to give. If he loses you can still write columns about how correct you were & how wrong he was. In the meantime help the man out, as he is trying to help us all whether you agree with his methods or not.
For further reading on Silveira vs. Lockyer & Gary Gorksi's fight with the NRA, please look in the Lawsuits & Court Cases section of my archives. You'll find all the previous posts on this case about 2/3's of the way down.