Litigation vs. Legislation

B

Bartholomew Roberts

Moderator
Currently, Alan Gura and the Second Amendment Foundation are creating a judicial foothold for the Second Amendment by pursuing a strategy similar to that used by the 1960s era civil rights movement. They identify particularly bad laws that are difficult to justify and then they identify good plaintiffs to challenge those laws in courts with the purpose of establishing solid case law concerning what the boundary of the Second Amendment is.

Occasionally, though, this strategy runs against well-meaning legislators who see the issue and introduce legislation to achieve the same goal. The problem though is that this legislation can have the effect of "mooting" the case by making the issue behind the lawsuit disappear. In terms of a short term solution, it makes no difference. However, in terms of long term legal precedent, you lose the chance to create good legal precedent concerning constitutionality.

You can see an example of this in legislation that Congress offered that would have allowed the residents of D.C. to own handguns. This legislation was offered before Heller made it to the Supreme Court, and if it had passed Congress, it could have derailed the most important Second Amendment case since the Bill of Rights was written. The Second Amendment would still be a collective right in all but 2 Circuits. Fortunately for us, that didn't happen.

However today, I see a lot of legislation aimed at the topic of carrying firearms that promises to offer us short-term gains; but has the potential to moot several good cases that might establish this as a Constitutional right.

It seems to me that several RKBA organizations are once again at cross-purposes over the best way to protect the Second Amendment and not working together well. To me, the litigation approach has a lot of benefits - it establishes good precedent and even if you lose the case, you can always go back to the legislature. The only pro-RKBA reason I can see for mooting these cases via legislation is if you believe the precedent will be bad and that the opportunity to make the legislative change will not be there in the future.

So I thought a discussion about the pros and cons of each approach might help us come up with a better framework to discuss these issues in the future; because it looks like this is an issue we are going to be discussing again.
 
Interesting argument. For a counter point - let's look at the practical nature of CHL and CCW permit laws

I did see it argued that such were not needed as the constitutional challenge was more important. It was claimed that such laws were in fact unconstitutional as we already had the right. Thus, some gun organizations fought and in some cases sabotaged the CCW laws for a bit.

If we had waited for a Heller like decision, we never would have had the current set of laws. Heller enabled reasonable restrictions and banning carry could easily be one as compared to having them at home.

But with legislation we have more than 40 shall issue states and a vibrant SD oriented culture and industry.

So, in a quick take - I think for carry outside the home - legislation did work. I can't seeing even a conservative SCOTUS freeing up concealed carry.

Have to teach - bye for now.
 
Legislation is sometimes used specifically to moot a case, such as has been attempted in Illinois in Ezell v. Chicago (SAF/Gura).

For me personally - just following the Moore v Madigan case, picking away at it one case at a time is slow and tedious. Heller basically said that it's inconstituional for the state to ban firearms ownership. That was very significant. But the difference now between gun owners living in Florida and those living in Illinois is the difference between litigation vs. legislation.

That is the difference right there. The respective leglislatures of the two states.

If Ilinois had a pro-gun governor, we would already have concealed carry.
 
Legislation is a good way to clear up statutory problems, and depending on venue, could be easier than getting a case before the Supreme Court.

Another thing some folks fail to understand is that the stakes are potentially much higher by taking the litigation route. A loss in the higher courts makes for bad case law and sets a precedent that could cause big problems later (some smaller gun rights groups aren't getting this).

Consider the Heller situation. Fortunately, we won. What if we hadn't? It would be an understatement to call the result of a ruling against us a disaster. Once set, the courts are loathe to overturn precedent. Heck, Miller still stands, 75 years later.

A loss in the legislature just means we try again next year. It took a while, but Wisconsin was able to get concealed carry by getting a better governor in office. Though there was some great case law set there by the Shultz case, the most expedient way to get it was to wait for a change in circumstances.

Sometimes, legislation isn't going to work, and sometimes we have a constitutional question that needs to be answered in a universal and decisive manner, and that's where the courts come in. We just need to be sure we're picking fights we can win, as a loss in one case can affect the entire country.
 
It takes forever for the people to accrue gun rights via litigation.

If you look at Chicago, yes litigation is necesary because the mayor at the time and the city council made it clear that they weren't going to allow guns in the city - no matter what the misguided judges in the Supreme Court might think. There would be no remedy via legislation - period. So yes basically the only way for people in Chicago to be able to exercise RTKBA is to plead their case to the courts.

But look how long it is taking.

I don't see litigation as being the total answer because I think courts are going to be reticent to strip states of their power. So there will be states like Maryland, and New Jersey where they have their own brand of gun laws and there will be places like Alaska and Arizona where they have their particular brand of gun laws. I don't see the courts picking apart MD and NJ gun regulations statute by statute to the point where those states finally resemble AZ. The only way that a state moves from being like NJ to being like AZ is via state legislation.
 
It takes forever for the people to accrue gun rights via litigation.
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The litigation route is time consuming; but the gains are more pemanent. It is much more difficult to overturn a 5-4 decision like Roe v. Wade than it is to simply pass and write a new law. Of course the flipside of that is we could start a promising case with a bad law now and by the time it gets to SCOTUS, who knows what Justices will be on the Court? There were two new Justices added to the Court from the time Parker/Heller started to the time it was heard.

My big concern is that the worst laws, the most infringing, are the ones that provide the best potential for good precedent for us - and because they are low-hanging fruit, they are often the same laws that the legislature tries to change before the lawsuit can run its course.

And a further issue is I am not seeing a lot of coordination between SAF and NRA on this issue. It seems NRA feels a lot more comfortable pursuing legislative solutions (which is historically their strongpoint) and SAF is more comfortable with litigation (which is historically an area where they have dramatically outperformed the NRA). Unless the two get together and work out which issues are going to fall into which sphere, that is going to be a source of future conflict, especially with the various right-to-carry laws proposed in Congress and the broad range of carry cases in litigation right now.
 
It is my firm belief that the stumbling block, within the NRA, is Chris Cox.

The SAF has always acknowledged the NRA and its acumen. The NRA? Cox simply doesn't want any competition with "his" organization.
 
The SAF has always acknowledged the NRA and its acumen. The NRA? Cox simply doesn't want any competition with "his" organization.
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While I don't entirely disagree, I can see the NRA wanting to play it safe with regards to litigation. As Bart mentioned, the Court balance was different before Parker became Heller, and a more than a few folks were nervous about its chances. A loss would have been a disaster, and there was talk that Gura was running off the reservation.

The guy certainly proved us wrong, but I can understand the reticence some felt at the time. Gura himself has mentioned that our greatest threat going forward is badly considered litigation, and we've seen some examples of that. Still, he's batting an incredible average, and I also wish we saw more coordination between the SAF and NRA.
 
Taking this one step at a time:

Tom Servo said:
While I don't entirely disagree, I can see the NRA wanting to play it safe with regards to litigation.
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As can I. The difference being that the litigation that was typical of the NRA, was not civil rights litigation. It was standard torts practice - Toss in the kitchen sink and see what floats to the top.

Gura & Company, started Parker as a civil rights tort, straight out of the annuls of the NAACP. That scared the NRA to no end, as they had never tried that style of litigation.

As was said, the Court was also different. That gives one cause to pause.

But with the win in the D.C. Circuit Court, that should have been the end of that particular litigation. We know it wasn't. D.C. just had to try and vindicate its own laws and pushed for cert.

At the same time, the NRA (via Chris Cox) tried to once again sabotage the litigation by pushing forward with a change in law, by the Congress.

As Bart mentioned, the Court balance was different before Parker became Heller, and a more than a few folks were nervous about its chances.
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Um, not quite the way it happened, Tom:
John Roberts was sworn in as C.J. in Sept. 2005.
Samuel Alito was sworn in as an Assoc. Justice in Jan. 2006.
The decision on Parker came out on March 9, 2007.​
The makeup of the Court had already changed. Instead of having a mere 3 solid conservative votes, we now had 4. It was acknowledged that Kennedy alone would be the telling factor.

A loss would have been a disaster, and there was talk that Gura was running off the reservation.
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Yes, it was still a gamble. But it wasn't our side that was doing the gamble. The ball was in DC's court, and they ran with it.

As for Gura running off the reservation, that was straight out of the mouth of ... Drum Roll, please ... Chris Cox.

Sorry, but Mr. Cox is the greatest liability the NRA has, in its current litigation meme. He needs to be leashed. A very short leash.

Consider the arm of the NRA that Mr. Cox runs: NRA-ILA - Institute for Legislative Action. In that aspect, I have no quibble with what Chris does. He is simply, superb.

It is when he ventures out of his field of expertise and substitutes "Litigation" for "Legislative," that he becomes a liability.

Gura himself has mentioned that our greatest threat going forward is badly considered litigation, and we've seen some examples of that.
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I wholly agree with that.

The NRA, in cooperation with the California Rifle and Pistol Association is doing a wonderful job of coordinating with Gura, Kates and Kilmer. Elsewhere... Not so good.

The kitchen sink that is Benson v. Chicago is an example. So too are the Texas cases - There has not been enough precedent built to sustain those cases. Their failure will be bad.

So too is Nordyke. It has become the proverbial albatross around the necks of gunnies in the 9th Circuit.
 
We are at a stage where everything we believe the Second Amendment protects, is not a legal fact.

Currently, the parameters (scope) of the 2A are being read, very narrowly by the courts. How narrow? The vast majority of the current cases are interpreting the Heller decision as allowing only the right to possess (Keep) and carry (Bear) firearms (specifically - handguns) in the home, for protection of self and family.

The lower courts are treating anything once removed from carry in the home as something beyond the core right and therefore not deserving of any heightened scrutiny.

Both the Heller and McDonald Courts explicitly recognized that the core right was to keep and bear arms for self protection. Full Stop. The lower courts are calling those remarks, dicta and ignoring the broader implications in favor of the actual holding of Heller.

The majority of the "carry" cases are looking to expand the view that the core of the right is self protection. That carry in the home is not the core right. That the broader carry (so-called "Public Carry") for self protection is as much the core right, as is carry in the home. They are doing this by attacking the various "May Issue" laws that several States have enacted.

A legislative response, as Bart as pointed out, is a short term "quick fix" that can be repealed at any time barring a firm judicial decision that the right to carry includes public carry.
 
So far in the plan of low hanging fruit there have been a few successes, particularly against the more draconian laws. However, I am not seeing a lot of success in going against major federal laws. I agree the Texas cases were done far too soon. It would seem to me that getting laws that were passed by congress and covered the whole nation would be more vulnerable if one of the easy ones was struck down first. I am thinking Lane v. Holder the best chance of that.

Once the track of litigation got started, it seems to me that at times the NRA seems out of it's depth. I just can't understand why they do what they do sometimes. One moment they are the best ally in the fight, then they turn around and do something like the Texas cases which seemed likely to only hurt the cause.
 
I don't think SCOTUS is ever going to step in and tell a state with CCW laws that those laws are unconstitutional.

On the other hand, we've yet to see a court saw that carrying a weapon is covered under the constitution.

There is an interesting read on the Brady site called "How Many Second Amendment Cases Will the NRA Lose?"


http://blog.bradycampaign.org/?p=3515
 
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