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« Dave Kopel on Heller and the right of self-defense | Main | How to deal with REAL straw man cases »

Brady on Heller: "we're glad we lost"

Posted by David Hardy · 24 July 2008 12:26 PM

At the Brady Campaign Blog. Where they claim that NRA's initial opposition to the suit was inspired by fears that, with gun confiscation off the table, the organization wouldn't do so well.

I heard a lot of discussion about taking a Supreme Court case 2000-2006, and the only concern was "no one can predict, or even rationally guess, the outcome." As one very pro-2A law prof said "I can see where you get two votes; I can't see where you get the other three." Law is always a roll of the dice; the question is whether you like the odds. Heller's team did, rolled the dice and won.

I can tell you that during the oral argument, there was a breathtaking moment when Justice Kennedy showed his hand (for the first time; where he stood on the 2A was completely unknown). I'm told the DC advocate's face fell as he realized he'd probably lost the fifth vote. The Chief Justice's questions had signaled he was all for an individual right at that point, I think. Alito was unknown, probably our way, and then he tipped his hand, too. We had five votes. But until then it was a cliffhanger.

· Parker v. DC

16 Comments | Leave a comment

David E. Young | July 24, 2008 1:32 PM | Reply

The first inkling of Justice Kennedy's concern was his mention of frontier self defense and defense against dangerous animals. These are subjects that were covered in the President ProTem of the Pennsylvania Senate's Heller amicus brief.

They are also subjects covered in The Founders' View of the Right to Bear Arms, which was cited several times in that amicus brief.

Studying the Founders' views is something that one will never regret.

Jim W | July 24, 2008 1:33 PM | Reply

Anyone who can write the Rybar dissent is on our side.

Gene Hoffman | July 24, 2008 1:45 PM | Reply

I know its a pipe dream, but I really wish Helmke, anyone at Brady, LCAV, or Sugarman could answer one simple question:

What good is firearm registration now that you can't confiscate them?

We don't have registration of chainsaws... We registered cars so we could tax them and make them harder to steal.. Firearms, once stolen get registered in a hurry..

I can at least see the argument for licensing but registration?

Thinking about it, I guess about the only "valid" reason is to be able to make sure people who become disqualified have given them all up but that's a pipe dream as well...

-Gene

The Mechanic | July 24, 2008 1:49 PM | Reply

"Licensing and Registration are now tougher to criticize:? That's a very tortured and convoluted line of non reasoning. Be glad you lost, Brady Bunch. There's a big helping of seconds and thirds where that came from.

Jim W | July 24, 2008 2:24 PM | Reply

The real payoff from Heller comes in 20 years when we have rolled back a lot of these laws and gun ownership begins to rise again in formerly disarmed areas.

Steve Wright | July 24, 2008 2:39 PM | Reply

The advantage of registration with no hope of confiscation? Simple -- when you make registration difficult and expensive and force people to make multiple trips to both the police station and the gun dealer (as I understand they have in D.C.) the number of people willing to deal with the hassle diminishes.

The less gun ownership there is, the less people who join the pro-gun side. Eventually you kill gun ownership through the back door, and then maybe even repeal the 2nd.

But the arguments they use in public ...

1. So that police know what guns are in a house they are approaching. Apparently if the police don't know of any registered guns in the house they traipse up in condition white and assume there are none there.
2. So guns can be quickly confiscated from people who lose the right to own them. This one isn't totally invalid, but I'm guessing someone who's doing things to lose their right to own weapons probably has one or two hidden away someplace that was "lost" or "stolen."
3. To sue people who have a gun stolen and then it pops up at a crime scene -- another attempt to reduce gun ownership by the back door.

I'm sure there are others.

The Brady's know (and this is correct from experience elsewhere) that every hurdle you put in front of legal gun ownership reduces the number of people who own guns.

jon | July 24, 2008 2:53 PM | Reply

like a petulant child.

Bill Wiese | July 24, 2008 3:42 PM | Reply

I agree with Gene Hoffman's comment above.

From a practical standpoint, registration becomes well-nigh-irrelevant if guns can't be seized (beyond felon-in-possession, imminent threat, adjudicated mental disorder).

In theory, a "well-regulated militia" - with term 'regulated' correctly defined in the parlance of the Founders' times as meaning today's "organized" - might require weapons to be inventoried :)

With 200+ million guns in US - and let's assume all, or even 25%, were to become registered - it becomes a customary and nonexceptional item on a policeman's mobile data terminal display: "Guns in household" essentially becomes the default display.

Bill Wiese
San Jose CA

chuck | July 24, 2008 4:01 PM | Reply

what's the purpose of licensing/registration other than to make gun ownership a privilege for a select few chosen by the elite. When you buy a firearm from a FFL you have to undergo a background check. What does licensing/registration do or prevent that the background check doesn't already do?

CDR D | July 24, 2008 5:05 PM | Reply

>>>From a practical standpoint, registration becomes well-nigh-irrelevant if guns can't be seized (beyond felon-in-possession...)

***

Felons CANNOT be prosecuted for failure to register any guns in their possession.

See *Haynes v. US* 390 US 85 (1968)

Carl in Chicago | July 24, 2008 5:06 PM | Reply

I have been following what the Brady Campaign says and does for long enough to know this:

It's perfectly consistent for them to have lost Heller and then claim victory.

D Laden | July 24, 2008 7:07 PM | Reply

Correct me if I am wrong, but wasn't registration used in CA and NYC to facilitate "assault" weapon bans?

Gene Hoffman | July 24, 2008 7:22 PM | Reply

I'm not a fan of licensing but at least I can understand it. Absent the quite valid concerns about prior restraint, I can see a social good argument for licensing. Think of it as the only a test that shows you know the 4 rules of safe handling.

Licensing as a farce to make it harder to buy a gun.. Well...

Registration was and is used in CA to ban a class of firearms. That's not likely to last and is certainly off the table as time progresses post Heller.

-Gene

Brian | July 25, 2008 7:02 AM | Reply

Given the circular logic test for the constitutionality of a ban that Scalia gave us, registration is the path to a total ban.

Institute a onerous and expensive registration process (like the NFA '34), wait a generation or two until the registration process has made handguns uncommon.

Then ban them and you'll pass Scalia's test. All guns are "dangerous" and through "reasonable regulations" you have made handguns "uncommon" in civilian hands.

Paul W | July 25, 2008 8:01 AM | Reply

I'll tolerate registration of guns when there's also registration of church membership, bible purchases, demonstrators, etc. Until then, fuhgedaboudit.

The ONLY purpose of registration is to compile lists of guns and gun owners for an eventual confiscation. Period. End. Of. Report.

David E. Young | July 25, 2008 11:04 AM | Reply

I disagree with a couple of the ideas Bill Wiese has included in this statement: "In theory, a "well-regulated militia" - with term 'regulated' correctly defined in the parlance of the Founders' times as meaning today's "organized" - might require weapons to be inventoried :)"

First, 'regulated' in "well regulated" from the Second Amendment does not mean "organized". I have clearly demonstrated that the Founders understood all of the able-bodied free men are the militia being refered to in period militia references. What "well regulated" meant to the Founders was the equivalent of "effective". Thus, the Second Amendment does not refer to an organized militia as Mr. Wiese suggests. It instead refers to all the civilians who could function as soldiers in an emergency. Read The Founders' View of the Right to Bear Arms if you are at all confused about this.

The able-bodied men cannot possibly be an effective militia unless they have and know how to use their own arms. The militia concept in America is based on the ability of the able-bodied free men to defend themselves and join together for mutual defense. The reason the right to keep and bear arms is protected in the Bill of Rights is as a guard against tyranny. There is a history behind this that extends back well prior to hostilities of the American Revolution. If unaware of this history, may I suggest that you read the first book length study of the Second Amendment that is mentioned just above. The Founders' View was cited seventeen times in various briefs supporting Mr. Heller in the Supreme Court.

Second, the only weapons that need to be inventoried by the government are government owned weapons. The Second Amendment does not mention and has nothing to do with government owned weapons. The people are perfectly capable of inventorying their personally owned weapons without the government getting involved.

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