“Lawyers are a prudent race though not very fond of liberty” – Ralph Waldo Emerson
December 15, 1791, after two years and six months of debate, the Virginia General Assembly ratified the Bill of Rights, adding, among other things, the Second Amendment to the United States Constitution:
A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed
And for the next two centuries, nothing really happened with the Second Amendment.
Fast forward two-hundred-seventeen years to June 26, 2008. It had been much debated as to whether the Second Amendment was a collective or individual right, whether it applied to state restrictions as well as federal restrictions, and to what extent it would limit government infringement of our ability to bear arms. For nearly seventy years the case of United States v. Miller, 307 U.S. 134 was hailed by gun control groups as decisively applying only a collective right to bear arms. Such an interpretation was due, in part, to the fact that neither the defendant nor their legal counsel appeared at the United States Supreme Court –who does that? That interpretation was wrong!
On June 26, 2008, the United States Supreme Court decided the issue of whether the Second Amendment provides for a collective or individual right only after substantial briefing from well informed scholars, politicians, associations, lawyers, and gun rights groups. In the case of Heller v. District of Columbia, 548 U.S., the Court held that the Second Amendment provides an individual right to bear arms. In doing so, however, it did not address the issue of whether it limited states’ restrictions of arms and provided little guidance as to what extent it permits restrictions on arms.
This was, in the short term, a fantastic victory for the Second Amendment movement and pro rights organizations everywhere. In the long term, however, it will likely lead to the demise of the Second Amendment, due in part to violations of ethical standards as well as arrogant attorneys (working without long term plans, strategic ability, or foresight) seeking fame and fortune in their gold rush type quest for glory to be the attorney that brought down the “assault weapon,” “CCW,” or “fill in the blank” laws.
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Why do I say ethical requirements may diminish the impact of the Second Amendment? The answer is simple; many attorneys fail to act competently. For example, attorneys frequently have a client facing firearms charges, for which they have no chance of prevailing. In a “hail Mary” pass attempt to save their client from prosecution, that attorney will throw everything at the wall to see what sticks –Since the Supreme Court’s ruling in Heller came down; their defense toolbox now includes an argument that the law being applied to their client is a violation of the Second Amendment. Yet, because of the novelty of the Supreme Court’s ruling on the Second Amendment, and the lack of substantive case law, very few attorneys have the requisite knowledge on the topic of the Second Amendment … let alone general arms rights litigation. These attorneys consistently fail to estimate the complexities of arms litigation as well as the long lasting impact their actions have on every single citizen of the United States of America. Because of their limited knowledge, they fail to seek guidance or advice given freely from those attorneys and organizations that have practical experience in arms litigation. The result? We are certain to have a string of bad case law akin to United States v. Miller that restricts the applicability of the Second Amendment based on incompetent counsel. Worse, who knows how long, if at all, it will take to have the Supreme Court resolve the issues left in the wake of this bad case law.
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Is this reckless? Yes. Is it unethical? Absolutely! For example, Rule 3-110 of California Rules of Professional Conduct states:
(A) A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence.
(B) For purposes of this rule, “competence” in any legal service shall mean to apply the 1) diligence, 2) learning and skill, and 3) mental, emotional, and physical ability reasonably necessary for the performance of such service.
(C) If a member does not have sufficient learning and skill when the legal service is undertaken, the member may nonetheless perform such services competently by 1) associating with or, where appropriate, professionally consulting another lawyer reasonably believed to be competent, or 2) by acquiring sufficient learning and skill before performance is required.
Simply put, if you are a criminal defense attorney with a client facing arm’s charges that you intend on defending on Second Amendment grounds or desire to have firearm laws overturned in civil court, don’t try and wing it! Either do not make such a defense or claim, or contact Second Amendment scholars, attorneys, or general arm’s right associations for advice and referrals. They are sure to provide you with some free advice beforehand in order to prevent bad case law and may even provide you with alternative methods to more successfully defend your client based upon the particular factual scenario.
That is not to say that cases challenging these laws must not be brought. Rather, some must be brought, but the attorneys filing these must also consider a myriad of factors, including, but not limited to: 1) Timing of the case, 2) Coordinated team work, 3) Factual pattern of the case, and 4) Jurisdiction of the case.
Timing of the case is always one of the first factors to consider. With the only Supreme Court case decision providing any real insight as to the scope of the Second Amendment being Heller, only a fool would seek to legalize such controversial firearms as ‘machine guns” as the first test case to be brought to the Supreme Court. On the contrary, the first few cases should be less controversial firearm restrictions similar to that addressed in Heller, such as San Francisco’s Public Housing firearm ban. Bringing such cases first will allow the Supreme Court the opportunity to clarify the scope of Second Amendment –thereby giving arms attorneys insight into the Supreme Court’s intent and better prepare for and plan future controversial cases.
Coordinated teamwork is also essential prior to engaging in Second Amendment litigation. Not a single one of the successful arms attorneys that I frequently communicate with go it alone. They communicate with scholars, academics, technical experts, and to some extent other arms attorneys to better prepare in advance of litigation. No one person can know all there is to know about a particular topic.
The successful arms attorneys know their gifts and limitations. They supplement their knowledge by discussing their cases with other leading figures within the movement. Group think can lead to discussion and understanding of topics that the filing attorney may not have considered, such as impact on other cases outside their jurisdiction, cases which may be better situated and positioned for Supreme Court review, and likelihood of success. Going it alone can result in having the very group of people you are seeking to benefit turn on your case in a flash should your case go south. That is not to say that attorneys must adopt wholesale all recommendations from the group think, but to intentionally fail to seek advice from those who have more experience, knowledge, resources, and influence than you is pure professional suicide.
Factual patterns must also be considered very carefully. Think for a moment, how will the United States Supreme Court interpret the scope of the Second Amendment when the facts of the case before them revolve around a convicted felon’s illegal possession of an “assault weapon?” Compare those facts with that of a “little person” who seeks the right to possess an “assault weapon” because the forward pistol grip (an “assault weapon” feature) provides the only method by which he can accurately fire a rifle? Of these two facts, which do you think the Supreme Court would look more favorably upon? Successful arms litigators seek out the better fact pattern for their case. For example, in the case of Guy Montag Doe v. San Francisco Housing Authority, the leading plaintiff was a homosexual male living in public housing who sought to possess a firearm in his home to protect himself. The defendant in that case voluntarily repealed their firearm restrictions. It doesn’t get much better than that!
Finally, jurisdiction is also of key importance when filing Second Amendment cases. The United States Supreme Court does not have to accept every case that makes it to their doorstep. On the contrary, they look for cases that resolve split’s in jurisdictions as well as novel federal issues, among other things. Second Amendment attorneys consider the location of each case to ensure the best chance of creating the best opportunity to be heard before the Supreme Court. For example, a case in Chicago and in San Francisco may address the same topic and could create the necessary split to attract the attention of the Supreme Court.
Additionally, certain jurisdictions should be avoided in their entirety –for the time being. In California, for example, the state Court of Appeal views laws, such as implied preemption (the concept that when a state has addressed a topic substantially that it impliedly intended to prohibit local actions on the same topic), very differently. Arms attorneys strategically plan to develop the case law in the jurisdiction most favorable to their goals over a string of cases before seeking to change the views of the jurisdiction that limits implied preemption.
Clearly, in order to move forward strategically the arms movement must consider all of these factors. Why? Second Amendment attorneys, like First Amendment attorneys in the early part of the 20th century, and Equal Protection attorneys later, bear a heavy burden. The litigation goes well beyond a single case. Each and every decision throughout the course of litigation has the potential of affecting our right to keep and bear arms.
Yet, it is these factors that now cause the biggest problem the Second Amendment movement will face in the post Heller era. The general public and their counsel may look around and believe that nothing is being done to further their rights in their state simply because no case has been filed challenging their local gun laws. But, as discussed above, it may be more strategic to not bring a case on a particular topic at this time, or to bring a case within a particular jurisdiction. The absence of litigation may simply be the result of very strategic planning and foresight on the part of the leading arms attorneys.
Unfortunately, the Second Amendment movement will likely be derailed by attorneys not skilled in the nuances of arms or arms litigation, who do not see the big picture, who do not have the foresight or strategic ability to succeed, and who are blinded by the gold rush mentality of being the first attorney to successfully challenge a particular gun law under the Second Amendment. Such attorneys are willing to risk our future on their chance for fame. Nevertheless, the stream of bad Second Amendment cases being brought without foresight and planning will continue to flow.
In order to preserve the chance at saving the Second Amendment from being relegated to a toothless right, experienced arms attorneys must begin to engage similar tactics. They must bring the right case at the right time, but at an accelerated pace. The public must be made aware of these cases to thwart off the overly aggressive attorneys and potentially stay any other cases addressing the same topic that follow. In other words, I see the next ten years of the Second Amendment movement as a pseudo arms race, if you will, to determine the scope of the right to bear arms. Barring this, I see the Second Amendment suffering the death of a thousand cuts.
The Firing Line, California Rifle and Pistol Association, Inc. Entire contents copyrighted, all rights reserved.