Parker and Beyond…

Good friend Henry Heymering of the group Maryland Shall Issue asked me for some clarification about some of my comments regarding the "Parker" case.  Here is my reply: Good friend Henry Heymering of the group Maryland Shall Issue asked me for some clarification about some of my comments regarding the "Parker" case.  Here is my reply:

As things stand, there are three big blocks to eliminating virtually all gun control laws:

1. The definition of "reasonable restrictions": This one is easy to grasp, but will be hardest to reach.  Parker should take a tiny slice in the right direction, but could cut a big swath in the wrong direction.  They could rule that registration of guns and owners is no "infringement" and we'd have that battle to keep fighting.

2. The "Collective Right" theory, the idea that the 2A refers only to the states' rights to form a militia (National Guard): This is the obvious issue for Parker to clear up as it is the issue that the Circuits have split over.

3. The issue of "Incorporation", the idea that the 2A only restricts only the federal government – states can do whatever they want.  Until passage of the Fourteenth Amendment, the Bill of Rights was considered to apply only to the federal congress.  After passage of the 14th Amendment, the courts have said that the protections of The Bill of Rights do apply to individuals and may not be compromised by the states, BUT those decisions have happened one by one as articles were argued before SCOTUS.  Since the question of whether 2A restricts state laws has never been asked of SCOTUS, 2A has never been "incorporated" into the protections of the 14th Amendment.
If DC had maintained the argument that 2A didn't apply to their laws because those laws didn't interfere with any state militia activities, SCOTUS could have again ignored the question of incorporation and simply ruled that either it was a collective right that DC was not interfering with, or it was an individual right that DC, as a subsidiary of the federal government, could not "unduly" violate.
Since DC says they are going to argue that 2A does not apply because the citizens of the District are not citizens of a state, that should force SCOTUS to answer the question; "Is this individual right protected against infringement by the federal government AND state/local governments?".  In other words, is this an individual right of every individual that may not be infringed by any government or is this an individual right that is protected only from federal restrictions.

Obviously, the Supreme Court can do almost anything they want to do – they can parse the DC Circuit decision and only hear or rule on some narrow little aspect, etc., but I think DC's stated strategy really makes it more likely that the Court will touch on all three points instead of just the first two.

As far as follow-up lawsuits are concerned, I think the first thing to do is to look closely at the DC Circuit's decision and try to determine how that ruling could be directly applied to someone in [your state].  One of the trickiest aspects of any case like this is finding a plaintiff who actually has "standing" to take the case forward.  Without standing you have nothing.  Only one of the Parker plaintiffs actually had standing and that's what killed NRA's similar case.  Ask your lawyer friends to do a careful review of the Parker decision as if it were the SCOTUS opinion and try to define exactly how it could best be applied in [your state]; what laws would best compare and what type of "denial of rights" could most clearly be argued, then find some plaintiffs who have been actually harmed by this statute and start preparing for the SCOTUS decision.

Since there is no way of knowing what SCOTUS will come up with, you don't want to spend too much time and money dotting "I's" and crossing "T's", you just want to have a couple of likely targets and a few potential plaintiffs in the wings so once a decision is reached, the wheels can begin to turn.  You don't need your ducks so much in a row as in a couple of small herds.  Once SCOTUS delivers an opinion, then you start forming rows.
One important point that I want to reiterate: Don't find a law that you want to target and try to build a case against it using Parker – use Parker to define a law that is vulnerable and make that your target.

If you have the right ducks that you can hustle out into a reasonably respectable row, attorneys and funding should see the potential and step up with support.