With the Supreme Court deciding today whether on not to grant cert on Heller vs. DC, the thinking comes around to the outcome if they do decide to hear the case.
If they decide not to hear, that's a victory. Enough said.
Where it gets interesting is the speculation on what the outcome will be if they do opt to hear it. It is pretty much a given among rights supporters that the Court will find in favor of an individual rights view even if they have to craft decision narrowly to avoid upsetting the national applecart.
What I've been finding myself wondering is what alot of us haven't talked about: What if we lose?
What if the Court supports a collective rights view of the States to form militias that doesn't apply the right to bear arms to specific individuals?
It's a possibility and one we have to acknowledge. I find myself wondering where it will lead.
First off, I don't think it will be an immediate catastrophe. Most certainly the media and the blogosphere will be buzzing and there will be many, many, many pissed-off gun owners. But once the outrage and vitriol die down, we will begin to settle into this new world.
Strangely, the world looks much the same as it does now. All that will be done immediately by a collective rights ruling is our inability to look to the Federal Government for help. The law of the land will be the same as it is today. Set at State and local level.
Gun laws won't change. The status quo remains. For a while, at least.
The longer term picture gets more interesting. For States with traditional anti-gun biases, they will be emboldened. They will see such a ruling as a green light to do as they will and their constituents won't be able to fight above them to stop it. Expect places like California, Illinois, Massachussets and New Jersey to go completely out of control within a few years.
On the opposite side, I expect strong pro-gun states to either maintain and reiterate their freedom stances. But not all. I suspect some States may try to go the route of the Blues and begin to introduce new regulations now that a big plank has been removed from their citizens to fight it.
Over time, I can easily see the country dividing up along freedom/socialism lines far more stark than it is today.
Gun control groups would feel themselves back in the driver's seat and may actually gain support in the wake of such a ruling. It would be one of their wildest dreams come true, after all, and it would vindicate them.
This is a wildcard in all of this in a post-collective rights world: Us.
You see, the average gun owner will hear about it and probably shrug it off. But over the coming months or next few years, they will see the encroachment begin and it may involve them for the first time where generations of gun control had passed them by.
Affect enough of these people and suddenly they are going to get involved. And for a lot of the more vocal rights supporters but who actually don't do anything when the chips are down, it will probably get them off the fence. Backed by the aforementioned pissed-off right supporters, I would expect their to be citizen involvement in the gun issue like there never has before.
I would also expect to see the NRA engaging in its biggest fund raising drive in its history. A loss at the Federal level would mean it would have to pull out all the stops and begin to fight hard at the State and local levels. In fact, I could imagine their membership demanding it.
We would be organizing to vote anti-gun politicians out of office in droves. Political suicide wouldn't cover it. We would be demand gun rights as a campaign issue and make sure those promises were kept. It would involve us in the political process front-and-center. In my home state, it would bring the gun owners out to try and save themselves. In somewhere like Virginia, I could easily see a gun control politician in conservative area being run out of town on a rail. Or anti-gun politicians winning massive victories in sympathetic areas.
On the other hand, I could also see this backfiring on the gun control groups in a big way.
You see, their contention has been the 2nd supports the idea that States have the right to form militias from their local populations as needed. It is logical to conclude that arms protected by the 2nd would be the ones suitable for militia service. Of course, what these groups don't say is the fact they would expect such arms to be provided by the State and not by the individuals themselves. A collective body of troops, organized and armed by the States.
But if the Court sees differently and says that certain arms would be protected for individuals serving in a militia, real fun would ensue. You could have no "assault weapon" bans anymore. Handguns would also be safe as would certain sniper (read: hunting) rifles. Not all arms to be sure and a lot of the arms most people see as their birthright could be subject to restriction.
But, of course, you need a militia for these individuals to serve in in order to possess these protected arms. What if a collective rights view leads us rights supporters to demand our States organize and train us as the militia? Properly and fully as envisioned by the Founders and within the confines of the Courts ruling?
Gun laws could fall as a result. They'd have to. You could carve exceptions out of NFA'34. All in the name of us preserving our collective ability to form and serve in a militia.
Don't tell me for an instant that enough of us wouldn't be lobbying our State legislatures to do this. I know I would and I am pretty sure a lot more would follow. We'd form the "militia loophole". And when the gun control groups scream about having to do something about, we can point to the Supreme Court as our defender. If a militia is the way we need to follow in order to preserve gun ownership, I predict a lot of demand for the States to "do something".
I could see the landscape from a gun ownership perspective becoming vastly different. And I don't think it will be a good one from the gun control perspective nor one we will like from a rights perspective. Time would tell.
Or maybe the Federal level will use the impetus to push through sweeping gun control and bans nationwide, Heller be damned. And then we just might see the biggest legislative fight between politicians and their constiuents that will make the illegal immigration fiasco seem like a bad game of pattycake. Using legislative means to gut court rulings works both ways. We could use a defeat to galvanize us to actually gather immense numbers to the fight. It might take years for it to happen as challenges wind their way through the Courts but eventually, an equilibrium would have to emerge.
Or we could all be disarmed and be powerless to stop it. Especially if such a ruling came as Hillary Clinton and Democratic majorities take over in 2008. They could try for it.
Many say that America could never be disarmed. The gun is too entrenched in our culture. Perhaps for this generation. Maybe it might lead to pockets of armed insurrection and resistance. Maybe there would be widespread civil disobedience to registration or "turn them in" orders. Maybe there might be a run on post diggers and 6 inch PVC pipe.
It also might our turning point. Conversely, it might be the start of our demise.
Just remember, we can lose. What happens then will be the interesting part.
If they decide not to hear, that's a victory. Enough said.
Where it gets interesting is the speculation on what the outcome will be if they do opt to hear it. It is pretty much a given among rights supporters that the Court will find in favor of an individual rights view even if they have to craft decision narrowly to avoid upsetting the national applecart.
What I've been finding myself wondering is what alot of us haven't talked about: What if we lose?
What if the Court supports a collective rights view of the States to form militias that doesn't apply the right to bear arms to specific individuals?
It's a possibility and one we have to acknowledge. I find myself wondering where it will lead.
First off, I don't think it will be an immediate catastrophe. Most certainly the media and the blogosphere will be buzzing and there will be many, many, many pissed-off gun owners. But once the outrage and vitriol die down, we will begin to settle into this new world.
Strangely, the world looks much the same as it does now. All that will be done immediately by a collective rights ruling is our inability to look to the Federal Government for help. The law of the land will be the same as it is today. Set at State and local level.
Gun laws won't change. The status quo remains. For a while, at least.
The longer term picture gets more interesting. For States with traditional anti-gun biases, they will be emboldened. They will see such a ruling as a green light to do as they will and their constituents won't be able to fight above them to stop it. Expect places like California, Illinois, Massachussets and New Jersey to go completely out of control within a few years.
On the opposite side, I expect strong pro-gun states to either maintain and reiterate their freedom stances. But not all. I suspect some States may try to go the route of the Blues and begin to introduce new regulations now that a big plank has been removed from their citizens to fight it.
Over time, I can easily see the country dividing up along freedom/socialism lines far more stark than it is today.
Gun control groups would feel themselves back in the driver's seat and may actually gain support in the wake of such a ruling. It would be one of their wildest dreams come true, after all, and it would vindicate them.
This is a wildcard in all of this in a post-collective rights world: Us.
You see, the average gun owner will hear about it and probably shrug it off. But over the coming months or next few years, they will see the encroachment begin and it may involve them for the first time where generations of gun control had passed them by.
Affect enough of these people and suddenly they are going to get involved. And for a lot of the more vocal rights supporters but who actually don't do anything when the chips are down, it will probably get them off the fence. Backed by the aforementioned pissed-off right supporters, I would expect their to be citizen involvement in the gun issue like there never has before.
I would also expect to see the NRA engaging in its biggest fund raising drive in its history. A loss at the Federal level would mean it would have to pull out all the stops and begin to fight hard at the State and local levels. In fact, I could imagine their membership demanding it.
We would be organizing to vote anti-gun politicians out of office in droves. Political suicide wouldn't cover it. We would be demand gun rights as a campaign issue and make sure those promises were kept. It would involve us in the political process front-and-center. In my home state, it would bring the gun owners out to try and save themselves. In somewhere like Virginia, I could easily see a gun control politician in conservative area being run out of town on a rail. Or anti-gun politicians winning massive victories in sympathetic areas.
On the other hand, I could also see this backfiring on the gun control groups in a big way.
You see, their contention has been the 2nd supports the idea that States have the right to form militias from their local populations as needed. It is logical to conclude that arms protected by the 2nd would be the ones suitable for militia service. Of course, what these groups don't say is the fact they would expect such arms to be provided by the State and not by the individuals themselves. A collective body of troops, organized and armed by the States.
But if the Court sees differently and says that certain arms would be protected for individuals serving in a militia, real fun would ensue. You could have no "assault weapon" bans anymore. Handguns would also be safe as would certain sniper (read: hunting) rifles. Not all arms to be sure and a lot of the arms most people see as their birthright could be subject to restriction.
But, of course, you need a militia for these individuals to serve in in order to possess these protected arms. What if a collective rights view leads us rights supporters to demand our States organize and train us as the militia? Properly and fully as envisioned by the Founders and within the confines of the Courts ruling?
Gun laws could fall as a result. They'd have to. You could carve exceptions out of NFA'34. All in the name of us preserving our collective ability to form and serve in a militia.
Don't tell me for an instant that enough of us wouldn't be lobbying our State legislatures to do this. I know I would and I am pretty sure a lot more would follow. We'd form the "militia loophole". And when the gun control groups scream about having to do something about, we can point to the Supreme Court as our defender. If a militia is the way we need to follow in order to preserve gun ownership, I predict a lot of demand for the States to "do something".
I could see the landscape from a gun ownership perspective becoming vastly different. And I don't think it will be a good one from the gun control perspective nor one we will like from a rights perspective. Time would tell.
Or maybe the Federal level will use the impetus to push through sweeping gun control and bans nationwide, Heller be damned. And then we just might see the biggest legislative fight between politicians and their constiuents that will make the illegal immigration fiasco seem like a bad game of pattycake. Using legislative means to gut court rulings works both ways. We could use a defeat to galvanize us to actually gather immense numbers to the fight. It might take years for it to happen as challenges wind their way through the Courts but eventually, an equilibrium would have to emerge.
Or we could all be disarmed and be powerless to stop it. Especially if such a ruling came as Hillary Clinton and Democratic majorities take over in 2008. They could try for it.
Many say that America could never be disarmed. The gun is too entrenched in our culture. Perhaps for this generation. Maybe it might lead to pockets of armed insurrection and resistance. Maybe there would be widespread civil disobedience to registration or "turn them in" orders. Maybe there might be a run on post diggers and 6 inch PVC pipe.
It also might our turning point. Conversely, it might be the start of our demise.
Just remember, we can lose. What happens then will be the interesting part.
3 comments:
If the courts take the case and accept a collective rights doctrine, that might be the impetus for a 28th amendment. That will take time, of course, but meanwhile I fully and completely expect it would have a tremendous impact at the polls for the Presidential race.
In short, I would say that the short-term impact of an anti-rights ruling would be a strong galvanization on the pro-rights side.
Two things:
First, take a look at this sadly-neglected entry over at SCOTUSBlog, which discusses many of the non-Second Amendment issues surrounding this case. The SC could rule very narrowly, say on standing, while leaving 2A questions untouched. Why they'd bother, I don't know, but it's a possibility. I'm not enough of a legal eagle to be able to tell if they could rule so as to uphold the DC laws without touching the 2A--but I'm sure they'd love to.
Second, David Hardy over at Arms and the Law has this extremely disturbing unpublished opinion from the Sixth Circuit (Tennessee), USA v. Hamblen, in which a man who purchased machine guns for use by a formally recognized state militia was convicted for possessing unlicensed full autos. "The court essentially rules that since the State Guard can be armed by the State when activated, and the governor *probably* would do that, ownership of the guns was not reasonably related to its purposes. Nevermind the question of training before being activated, or that the governor might find it convenient for the units to have their own equipment."
In other words, you can't possess arms if you're on your own--and you can't possess arms even if you're a member of, or even leading, an organized state militia.
You're only allowed to be armed if the government itself gives you your gun.
Thank God for the Kentucky Constitution. The language is unequivocal. If we only had an idea which way Kennedy will vote...
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