The Heller You Say

I know it’s taken me a while to post anyting about the Heller decision. Fortunately there’s been a lot of good info out there. First, this is cause for relief, but not celebration. We were one vote away from re-education camps, as Chuck Michel puts it. In a world where Supreme Court Justices were required to read at a 5th-grade comprehension level this decision would have been 9-0, not 5-4.

Glenn Reynolds, writing at Instapundit, did make this observation:

What’s most striking about Heller is that absolutely everybody — majority and dissents — says the Second Amendment protects an individual right.

It’s true that the dissenters’ view of that right is somewhere between “minimalist” (to be charitable) and “incoherent” (to be accurate). But nonetheless, all nine Justices specifically said the right is individual, and thus rejected the “collective right” position on the Second Amendment, a position that’s been the mainstay of gun-control groups, newspaper editorialists, and lower federal courts for decades, and one that was presented by those adherents as so obviously correct that those arguing for an individual right were called “frauds” and shills for the NRA.

Yet the collective right theory could not command a single vote on the Court when actually tested. It was, it seems, a paper tiger all along.

(If you don’t read Instapundit regularly, I highly recommend it.)

This is a hopeful opening salvo in what will still be a long struggle. Just as passage of Civil Rights legislation in 1964 didn’t suddenly open all doors for blacks, this isn’t going to suddenly restore our constitutional rights. As in the 60’s, state and local governments will be dragged, kicking and screaming, to comply. Witness this clue-deficient memo sent to District residents by Washington, D.C.’s idiot chief of police.

a.. First, all firearms must be registered with the Metropolitan Police Department’s Firearms Registration Section before they may be lawfully possessed.

a.. Second, automatic and semiautomatic handguns generally remain illegal and may not be registered.

a.. Third, the Supreme Court’s ruling is limited to handguns in the home and does not entitle anyone to carry firearms outside his or her own home.

I guess she has yet to, you know, read Scalia’s remedial English lesson.

It’s going to take lawsuits. Lots of them. Fortunately our side is getting lawyered up. Chuck Michel sent this out yesterday.

The incorporation lawsuits are not the extent of the NRA’s plan nationally, nor is the SF suit all that is planned in California. We have a full “dream sheet” of litigation we want to bring, using both the Heller ruling and the Fiscal preemption ruling (Prop H).

NRA is leading and working with like minded civil rights groups including CRPA, CCRKBA, SAF (represented by Alan Gura), GOC, PP and reps from calguns. Hopefully we can hold all the groups together for the long haul. Factionalism is counterproductive. At this stage everyone seems to recognize that overreaching too soon could result in bad precedent not just for California, but nationally.

Some examples of what is coming down the road:
Oakland has already been served with a pre-litigation demand to repeal its “ultra compact handgun” ban. SF’s UCH and .50 caliber handgun bans are also in our sights.

A renewed challenge to all or part of the semi-auto ban is also in the works. CRPA has already has significant funding set aside for this effort. TMLLP is coordinating with Calguns on a semi-auto licensing suit, which may include other elements. We can work together on this effort, but we need to time it carefully. This case is probably not the forum to litigate the incorporation issue. Consider how clean the SF ban on guns in public housing challenge is — the SF gun ban is broader than the ban that SCOTUS struck down in Heller. That allows the lawyers on our side to focus the court on the threshold incorporation issue. Until we get that issue resolved, state and local governments are not restricted by the Heller ruling.

I am also in contact with some of the lawyers and groups advancing CCW litigation. This is also a licensing issue, not as clean as challenging a flat out ban.

There are a lot more possibilities. Lawyers are still studying the Heller decision and considering its implications. Ultimately though, any case challenging a state of local law in California will have to get a hearing before the Ninth Circuit, or perhaps SCOTUS, on the incorporation issue. Hopefully, everyone in the self-defense civil rights community can appreciate the need to get incorporation resolved as quickly and simply as possible before moving to phase two.

I support the fledgling calguns foundation, and encourage you to support it too. You should also know, however, that because of the depth of the legal challenges pending, any California donor making a donation to NRA-ILA, the NRA Civil Rights Defense Fund (501(c)(3)), CRPA, or CRPA Foundation (501(c)(3)) can count on that money (and then some) being spent in California. Checks made out to those entities can be sent c/o TMLLP for processing to ensure this if you desire. (And yes – you get a free magnet. Come to think of it, I will restock my “Don’t Get Screwed by California Gun Laws” screwdriver giveaway and throw one of those in too.)

Although Heller does not go as far as I would have liked, and we were one vote away from re-education camps, we are now looking forward to better days my friends.

One can only hope that the narrow margin on this decision (plus another awesomely stupid decision) will weigh on voters’ minds this November. In any case, I share both Jefferson’s fears and view that America was founded to make water run up hill.

Update:

I’ll add more links as I find them, starting with one which found “Strictest Scrutiny” in a Heller footnote.