I would suggest that the Court decisions which cause political change are those where the Court exceeds the boundaries of the Constitution to impose the justices' own policy preferences.

The awful decisions barring prayer and then creating a "right" to abortion arguably created the religious conservative movement.

The decision creating a right to homosexual "marriage" caused a backlash leading to the passage of marriage definitions across the country and probably the Bush reelection.

The forced busing decisions shifted the South and many Northern whites to the GOP until busing was at last abandoned as a misconceived failure.

On the other hand, when decisions fall within the mainstream of popular (not elite) political thought, they are largely ignored.

For example, despite claims to the contrary, decisions which narrowed Roe came and went with no feminist backlash at the polls. Indeed, the feminist movement faded during this period.

In this case, as I noted in my response to your earlier post, a solid majority of voters believe that the Second Amendment gives them the right to own a gun. There will only be a political backlash if the Court removes the Second Amendment from the Bill of Rights as DC suggests. A narrow decision simply holding that we have a right to keep a gun in our own homes is unlikely to cause much of a reaction.
 

You need to work on the football analogies.
 

You're right, who benefits from these victories depends, but within these groups, nuanced debate is driven out by the people who have the money and power to gain by simplifying issues for fund raising and Election Day.

Some of this goes in the way of Slippery Slope arguments: Banning one gun, even an assault rifle, means, for the Second Amendment advocates, the eventual means to ban them all. Giving some individual rights means, for the left, giving individuals rights to everything, even rocket launchers. The likely compromise ruling from the Court will not end this. Either of two, winner-take-all positions, will give partisans another wedge issue.

A part of the vitriol is explained by Orly Lobel who writes, [t]he focus on law tends to overwhelm individuals and groups with its vast resource demands and to divert energy from alternative avenues. In particular, within a movement, subgroups with greater resources tend to hold more sway in making tactical decisions than do grassroots subgroups with fewer resources, causing legal strategies to neglect the more pertinent goals of the movement at large."

It is certain that the status of the debate will either change very little or get, at least on one side (then probably the other), much worse and nonsensical.
 

As the general counsel for a small gun control organization many years ago, I was able to observe the NRA and its allied organizations fairly up close. One dynamic that never failed was that crisis and opposition drove both its activism and fundraising. When there was a threat--ideally real but manufactured if necessary--they used that threat to gin up political activism and, perhaps as importantly, its very sophisticated direct mail fundraising. In times of quiescence, when the threat to gun rights was perceived to be in retreat, the NRA and other groups faced significant problems.

I suspect we will see something similar should the court rule as most expect; recognition of some qualified individual right to keep firearms. The NRA will probably face, once again, the historic difficulty of keeping its constituency energized in the face of success.
 

When you get a chance check out our trailer on Gay Marriage. Produced to educate & defuse the controversy it has a way of opening closed minds & creates an interesting spin on the issue: www.OUTTAKEonline.com
 

All this talk may be jumping the gun. For a sophisticated review of the latest literature on this subject, see the latest issue of the New Republic (Nov. 19) for Cass Sunstein's review of Mark Tushnet's book.
 

Some of this goes in the way of Slippery Slope arguments: Banning one gun, even an assault rifle, means, for the Second Amendment advocates, the eventual means to ban them all. Giving some individual rights means, for the left, giving individuals rights to everything, even rocket launchers.

Well, Brett assures us that the reason he takes such alarm at the slightest move toward regulation is that the people who favor it have admitting their intent is a total ban.

I, in turn, would be less alarmed at an individual rights interpretation if people like Brett or the NRA would agree to some reasonable restrictions and did not insist on the formula that the more military the weapon (i.e., them more lethal), the greater the right to individual ownership.
 

Bart,

By an elegant sleight of hand, you appear to be equating decisons that "exceed the boundaries of the Constitution to impose the justices' own policy preferences" wth ones that fall outside mainstream political thought. These are not the same at all.

What about Prof. Balkin's example Brown, which everyone now agrees was constitutionally legitimate, but which fell well outside "mainstream political thought" in the South?
 

You and dmh may be correct about the short term fall off of gun rights activism and membership activity for the NRA, however there is one course the NRA can take that may instead invigorate it's members rather than suffer their apathy. If the NRA can switch to the offensive after confirmation of the individual right, and pledge to begin the process of eradicating the plethora of confusing and often conflicting gun control laws on the books, they might be able to preserve the momentum of the victory in the court and press the advantage.

One of my most serious frustrations with the NRA, and I am far from alone in my sentiments, is that while they have done much to keep new gun control laws from being passed, they have failed miserably in trying to get existing ones repealed or moderated. One of the most vexing aspects of gun control laws in the US is that they are so complex, numerous and arbitrary, that one must become an expert on them just to ensure that one is obeying the law. The whole purpose of the "rule of law" concept in free societies is that people can live in liberty without fear of arbitrary police action or judicial fiat that puts their liberty in jeopardy. That assurance often doesn't apply for gun owners, manufacturers and dealers because it is so difficult to interpret and follow the national, state and local laws. The BATFE in particular has broad powers in interpreting the statutes, and indeed, changing those interpretations on a whim. Google Len Savage and ATF for an example. The JPFO provides an abundance of evidence and examples of the capriciousness of the BATFE.

A great many gun owners and members of the NRA would be enthused and energized by the prospect of that organization making a concerted effort to clean up the laws on the books such that 1) they focus on truly effective measures to keep firearms out of the hands of the insane or criminal (instant background checks with all relevant mental health and criminal facts considered) 2) does not prohibit law abiding gun owners from engaging in their sport in the manner of their choosing (i.e. not prohibiting the ownership of any specific type of weapon, but instead reasonably regulating their trade and usage) and 3) provides gun owners relief from the bewildering forest of regulations by refining the laws into a simple and coherent set of guidelines that any non-lawyer layperson can understand.

My fear is that the NRA is simply too lumbering an ponderous an organization to capitalize on this opportunity. But even so, polls show that most Americans do believe that the 2nd Amendment does guarantee an individual right to keep and bear arms and the decision to affirm that belief will strike most Americans and the right one. The fact is, as noisy as they are and as much as the media backs their rhetoric, the gun control movement in the US is much smaller than it appears. The backlash you predict will be the tempest in a teapot that it has always been. Having the court affirm the 2nd as an individual right won't be the end of the fight for gun rights, it will be the tipping point in the war.
 

EL:

I suppose there are decisions which are within the bounds of the Constitution which fall outside of popular political thought. Finding flag burning to be constitutionally protected comes to mind. But this is an exception, not the rule.

As for Brown and its progeny, the decision to reverse the unconstitutional separate but equal doctrine is well within the Constitution and the popular political belief that government should treat people the same. The South needed to reminded that African Americans are people too.

However, the courts went way beyond their Article III powers and popular political opinion by implementing forced busing to enforce their ideas of social engineering. I doing so, the courts generated a backlash which helped realign the parties.
 

Enlightened Layperson stated:
I, in turn, would be less alarmed at an individual rights interpretation if people like Brett or the NRA would agree to some reasonable restrictions and did not insist on the formula that the more military the weapon (i.e., them more lethal), the greater the right to individual ownership.

The NRA is far less "extremest" than you seem to believe. And the lethality of the weapon simply is not the issue, as the failure of gun control laws has repeatedly demonstrated. The Virginia Tech massacre was perpetrated with the weakest and least lethal of firearms: a .22 pistol and a 9mm pistol. It wasn't the lethality of the weapons that caused all those people to die, it was the mental instability of the man who used them combined with the unthinkable passivity of the victims that didn't even try to fight back and disarm the attacker. Need I even mention that just one person with a concealed carry permit potentially could have prevented most or all of those deaths had VT not, like most universities, denied them their right to carry on campus like they are able to carry anywhere else in the state?

The semi-automatic rifles that gun control advocates mistakenly call assault weapons are used in a tiny percentage of crimes (1.1% of violent crimes in the US betweem 1996 and 2004, 0.8% in 2005 after the sunset of the 1994 AWB (Dept of Justice http://tinyurl.com/yolfpf). Fully automatic rifles, which are appropriately labeled assault weapons, as well as any other full auto weapon, are very strictly regulated via the National Firearms Act of 1934, as are sound suppressors, rifles with barrels shorter than 16 inches, shotguns with barrels shorter than 18 inches, and several "any other weapon" class firearms like shotgun pistols and pistols with grips forward of the magazine. Machine guns made after 1986 can no longer be transfered between private citizens due to an amendment sneaked by late night voice vote into the FOPA law passed that year.

Gun control groups don't tell you the truth about these things, because having the public believe that these items are not regulated keeps them funded and relevant. The kind of greed the NRA is accused of by those groups really says more about them than it does the NRA. We've passed the point of "reasonable" gun control and gone FAR beyond it, and it has not made anyone any safer. Thats because blaming the tool doesn't work nearly so well as pursuing the criminals who use them instead.

Essentially, what these people are saying is that it is unreasonable for gun owners to want ergonomically improved rifles that are easier to use safely. Pistol grips and vertical fore-grips for better comfort and control of the rifle while shooting. A flash hider to reduce the blinding effect on the shooter (the only person the flash "hider" is supposed to hide the flash from is the shooter). Collapsable stock to accommodate different arm lengths and clothing thickness. Folding stocks for storage and transport. Detachable magazines that actually improve the safety of a firearm because it's easier make sure the gun is unloaded. Clearing the rifle only involves dropping the magazine and working the action once.

When you actually use these weapons and are personally familiar with them, the ridiculousness, indeed the unreasonableness, of these so called "reasonable" gun control laws becomes blatantly obvious. Go to a range with a friend, have them demonstrate the proper functioning of the firearm, take a turn and operate it yourself. It's pretty obvious from a lot of these posts that the poster has not even the most glancing familiarity with what he's talking about. Educate yourself before advocating what you call "reasonable" restrictions that you'll never have to suffer the consequences of.
 

Fully automatic rifles, which are appropriately labeled assault weapons, as well as any other full auto weapon, are very strictly regulated via the National Firearms Act of 1934, as are sound suppressors, rifles with barrels shorter than 16 inches, shotguns with barrels shorter than 18 inches, and several "any other weapon" class firearms like shotgun pistols and pistols with grips forward of the magazine.

Yes, and Brett, at least, has made quite clear that he considers the ban on machine guns (and perhaps other weapons besides firearms) are illegitimate. The NRA position that the 2nd Amendment specifically protects private ownership of military weapons so we can offer armed resistence to the government logically speaking would reach the same conclusion. Your own objection to banning "whole classes" of firearms would also seem to indicate you consider these bans illegitimate as well.

The NRA is no doubt politically wise not to emphasize such views.
 

"The NRA position that the 2nd Amendment specifically protects private ownership of military weapons so we can offer armed resistence to the government..."

You really ARE ignorant about the NRA, aren't you? That may be the consistent, historically justifiable interpretation of the 2nd amendment, but it is not, regrettably, the NRA's position on the matter. The NRA tossed machine gun owners to the wolves decades ago, and has shown no interest at all in defending them.
 

This comment has been removed by the author.
 

Characterizing the Parker/Heller lawsuit as the work of "The NRA and associated forces" is extremely misleading. The NRA did not bring this suit, and its only contribution was to try every imaginable ploy to undermine it. They filed a "copycat" suit naming additional defendants and other ground, and attempted to get their suit consolidated with Parker (with the NRA's attorney as lead counsel, of course.) When the original plaintiffs objected, the suits were not consolidated, but the Ashcroft Justice Department (named as a defendant in the NRA suit but not in Parker) brought up all the standing issues that resulted in throwing out the cases of five of the six original plaintiffs. When the consolidation strategy failed, the NRA tried to get Congress to repeal DC's ban (The bill was sponsored by Larry Craig, no less) in order to render the issue moot. Only after Parker prevailed in the DC circuit were the attorneys in Parker/Heller able to get the NRA to simply stay quiet. All this is documented at the website of Alan Gura, the lead attorney in Heller. The NRA has no role whatsoever in this suit, except possibly as the eventual filer of an amicus brief.
 

I think the Court will end up following the majority American opinion, which is that Americans have a right to bear arms but that it can be heavily regulated, preferably at the state level (I find it really unlikely that Thomas would vote to incorporate the 2nd Amendment against the states).
 

As I understand it, Justice Thomas has no generalized objection to incorporation, he merely objects to it in the narrow context of the establishment clause. I won't repeat the arguments against incorporation of the establishment clause, but unless you take a 'collective right' approach to the 2nd amendment, (Thomas apparently does not.) they are not applicable to the subject at hand.
 

(This is Brett M)

The clearest recent example of a galvanizing loss is Kelo, which may have been the best thing that could have happened to the Institute for Justice. Of course, IJ had already developed an action plan for a civil rights-type media attack, and as far as I can tell, the gun control lobby isn't playing the same game. But maybe the gun control folks will step it up.
 

As I've mentioned before, the situation is a bit asymmetric, in that the pro-gun movement is a mass movement, with pro-gun organizations being membership style organizations accounting for over one percent of the total population, and several percent of registered voters. While the gun control movement is most assuredly NOT a mass movement, and the organizations are top down, command and control organizations, primarily funded by a handful of liberal foundations like Pew.

This undoubtedly implies different consequences for one side vs the other in the event of a court loss.

The best we can hope of the Heller case is that the Supreme court declares that the 2nd amendment clearly does guarantee an individual right. All that does is spike the strictest gun control law in the country, in one city.

Just as Brown did not instantly usher in an age of color blind government, Heller will not, even if honestly decided, be the end of litigation on the subject. It will be the beginning of the legal fight.

The District would respond by enacting a law barely less restrictive, and then abusively enforcing it. And have to be brought back to court. While cases would have to be brought in all the other circuits, challenging their 'collective right' local precedents in light of the Supreme court ruling.

All this would, I think, actually energize the pro-gun movement; We always do our best in the midst of the fight, and the fight would be on everywhere.
 

Brett:

I suspect that the Court's question will set the reach of this decision. If Kennedy goes along, the majority will likely find that the Second Amendment guarantees a reasonable right to keep (own) arms and that arms include handguns, but will only extend the individual right to bear (carry) arms to one's own home.

The next phases of litigation will be to determine how far the right extends to bearing arms in public, what other arms are protected and whether the Second Amendment can be imposed against the states and localities.

There may also be another line of cases to determine under what circumstances the government can deny your Second Amendment rights and how much due process is required.

For example, you can probably deny felons second amendment rights the same way you can deny them the right to vote. However, can you do so for misdemeanors or even even mere allegations in a petition for a protective order?

Currently, many states allow a Court to deny a person's right to keep and bear arms without so much as a hearing. If the Second Amendment is finally recognized as an individual right, what level of due process is required to suspend that right? A hearing? An actual criminal trial resulting in a conviction?

The NRA's legal arm and other amici are going to be very busy for a couple decades on these cases.
 

Enlightened layperson stated:
Yes, and Brett, at least, has made quite clear that he considers the ban on machine guns (and perhaps other weapons besides firearms) are illegitimate. The NRA position that the 2nd Amendment specifically protects private ownership of military weapons so we can offer armed resistance to the government logically speaking would reach the same conclusion. Your own objection to banning "whole classes" of firearms would also seem to indicate you consider these bans illegitimate as well.

That is indeed my position as well. There is no small arm that should be outright banned under the 2nd amendment. This is not to say that the trade and use of such weapons cannot be regulated, such as under the NFA of 1934, minus the chief law enforcement officer sign off requirement added by the GCA in 1968 which many politically minded police chiefs and sheriffs have used to advance anti-gun agendas and their own careers. The approval of a Form 4 (tax stamp authorizing the transfer of an NFA item to a private citizen) should be shall-issue, meaning that provided the individual has passed a thorough background check, has not been treated for dangerous mental problems, and is not a felon for a violent crime, the form must be approved.

There is a case to be made that certain weapons of war would be too easily mishandled. For instance, any chemical, biological or nuclear weapon would be too easy to mishandle and too difficult to properly "keep and bear". That kind of arm is reasonably considered too dangerous for the public at large to own, because the responsibility is too large to be expected of and assumed by any given citizen. The same is not true of machine guns, which are peacefully owned and operated by hundreds of thousands of private citizens. The argument against private gun ownership based on the "nuke" argument is a straw man.

It's crystal clear from reading contemporaneous writings from the time of the founding that state-of-the-art military weapons were what the framers had intended to ensure access to, because only those could be plausibly used to ensure freedom from a corrupt and despotic government. Given the progress of firearm development up until that point, I think many people give the framers too little credit in anticipating the technological advancements that would come. They already understood war to be a terrible thing and that the weapons of war inflicted grievous injury to those they were used upon and that they would be likely to do so with increasing efficiency as further developments progressed. However, that doesn't negate the purpose of their ownership by the people.

When you consider the insurgency in Iraq, it is not hard to see how a citizenry armed with the typical weaponry available to a modern soldier (simple explosives and small arms) can be able to inflict great psychological and physical damage upon an enemy. From most reports, the majority of fighters in the insurgency over there aren't even that good with their weapons. But even so, they have almost convinced the people of this country that it's just not worth it. Amplify that effect in this country by a much larger number of gun owners, typically with much greater skill in using them, and factor in a large number of highly trained former military, resisting illegitimate martial law imposed by a government intent on despotism. That was what the framers had in mind. It is noteworthy that even now the policy in Iraq is to allow one military grade rifle per household (per male per household?) to ensure that citizens there can provide for their own defense.

The NRA is no doubt politically wise not to emphasize such views.

Probably. But that is because the kind of outrage that people espouse over private machine gun ownership betrays their complete ignorance of it's dynamics. And the ignorance is even more widespread than that of just regular gun ownership.

Gun collecting itself is a middle- to upper-class hobby. While the average poor to lower class household may have a shotgun or pistol for home defense, most gun owners of this sort don't consider themselves "gun owners" like members of the NRA do. The gun they have is simply a safeguard against violent criminal aggression toward themselves or their family.

In the current state of affairs, machine gun ownership is a rich man's hobby, due to the fixed supply imposed by the Hughes amendment (18 U.S.C 922(o)). The average person cannot justify spending $10000 on a single firearm to get into the hobby. If the ban is struck, and the supply of automatic weapons becomes dynamic again, it will still remain a middle- to upper-class hobby. Beyond the expense of the firearm, ammunition is a non-trivial cost. It is expensive enough as it is to regularly shoot with semi-automatic rifles. For many, the cost of regularly shooting a fully automatic weapon is too high to even justify owning it. Therefore, ownership of legal automatic weapons serves two purposes: a hobbyist interest and the preservation of a free nation.

Also, once you actually fire a machine gun, you start to wonder what all the hubbub is about. Sure, they are very fun to shoot and it makes for an exciting day at the range. But semi-automatic aimed fire is the most effective use of a rifle when actually engaged in a fight, and indeed, is how most of our soldiers employ their weapons in the field. Full auto fire from a shoulder fired small arm is only very useful for close quarters combat and for keeping the enemies' heads down while trying to advance or retreat from a position. Crew served weapons such as the M2 are for anti-materiel and cover fire. They are fun to shoot, but really expensive to feed.

The kind of people who collect firearms, especially machine guns, are not the type of people you generally find involved in criminal enterprises for several reasons. One must have a steady, well paying job to have enough money to engage in the hobby in the first place. Besides making it difficult to pass a background check, a criminal record also makes that type of employment very unlikely. Additionally, just one conviction of a violent crime will cause the perpetrator to sacrifice all his arms as well as the right to own them again once his sentence is done. This is as it should be, of course. The rights we a guaranteed by the Constitution are not without responsibility and the exercise of such are not without consequences. If you violate the social contract that the Constitution creates, you forfeit the liberties guaranteed by some of those rights.

Most criminals prefer large caliber handguns, as has been repeatedly borne out by data from the DOJ and FBI. Even so, if a criminal wanted a machine gun instead, all he would need to do to get his hands on it is buy one smuggled in from Mexico for under $1000. If the genuine interest is keeping weapons like this out of the hands of criminals, focus on securing the border and prosecuting the criminals and leave the collectors and hobbyists alone.
 

When you consider the insurgency in Iraq, it is not hard to see how a citizenry armed with the typical weaponry available to a modern soldier (simple explosives and small arms) can be able to inflict great psychological and physical damage upon an enemy. From most reports, the majority of fighters in the insurgency over there aren't even that good with their weapons. But even so, they have almost convinced the people of this country that it's just not worth it. Amplify that effect in this country by a much larger number of gun owners, typically with much greater skill in using them, and factor in a large number of highly trained former military, resisting illegitimate martial law imposed by a government intent on despotism. That was what the framers had in mind.

This is propaganda, not originalism. No one who is the slightest bit familiar with the social attitudes of the 18th C could claim that the upper class -- and the Founders all were members of that social class -- would EVER support violence by those below them on the social scale unless they controlled it. That was true of the Boston mob, it was true of the militia, it was true in Shays Rebellion, it was true in the Whiskey Rebellion. There was no support by the Framers -- none whatsoever -- for unregulated violent action.
 

Then its their propaganda, not mine. Perhaps the Iraq insurgency isn't what they had in mind, and I romanticize their professed belief in the ability of a society to throw off the yoke of oppressive government. But my point still holds about the effectiveness of the means to do so.
 

Off Topic:

WANTED: LEAGLE EAGLE

Hey, all of you law professor types: one of you ought to join in the discussion over at Glenn Greenwald and Atrios and the Anonymous Liberal and Firedoglake concerning Joe Klein's idiocy over at the Time Magazine Swampland blog regarding the FISA legislation before Congress.

In a column to be published in Time Magazine, he utterly mischaracterized the FISA legislation and then slammed the Democrats for being weak on national security based on his mischaracterization. He actually accuses them of giving foreign terrorists the same rights as Americans. As Greenwald said:

"The most obvious and harmful inaccuracy was his claim that that bill "would require the surveillance of every foreign-terrorist target's calls to be approved by the FISA court" and that it therefore "would give terrorists the same legal protections as Americans." Based on those outright falsehoods, Klein called the House Democrats' bill "well beyond stupid.""

Why doesn't one of you join in the criticism of Joe Klein for his idiocy? His piece is slated to be published in the next issue of Time Magazine, helping reinforce among millions of readers the stereotypical critique of the Democrats as being soft on terror.

Klein refuses to make an honest correction and admits that he got his interpretation from a Republican congressional staffer. He appears not to have consulted any Democrats or, say, this web site or any of the others that could have explained the facts to him.

He deserves to be made an example of -- to take a shot across the bow of the media whores to let them know that they are not going to sabotage another Democratic election unchallenged.

A trenchant analysis of exactly how wrong Klein is -- and why and how inexcusable his "error" is -- coming from one of you would be very powerful.
 

In your opinion, what would happen if the S.C. rules for D.C.?
 

All, everything that I understand, I only understand because I love.
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