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View Diary: NRA stays silent as momentum continues to build for changing gun laws (95 comments)

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  •  Misplaced optimism? (0+ / 0-)

    The Heller and McDonald decisions changed the landscape completely. These decisions have, in the only Second Amendment SCOTUS decisions in modern times, affirmed that the Second Amendment protects the right of an individual to keep and bear arms for the purpose of self defense (Heller) and that this right can not be infringed by lesser (state/local) governments due to the 14th Amendment (McDonald).

    No one has to agree with these decisions, but it would be folly to ignore that they are about as unlikely to be overturned, except via the process of amending the Constitution, in the next 50 years as Roe v. Wade is. Actually, overturning Heller is probably less likely than overturning Roe v. Wade as the Second Amendment specifically enumerates a right while a right to have an abortion is not specifically enumerated. Indeed, Heller is to Gun Control what Roe v. Wade was to Abortion -- a Really Big Deal™.

    Now the battles will be in the courts, not in blogs, protests, or oped pages. I suspect it is this shift that has motivated the NRA's et al responses to be dramatically different this time. When your opponent seems to shift tactics, it's time closely closely examine your own strategy and tactics rather than assume your opponent has given up. When the battlefield inexplicably goes quiet and your enemy seems to have left without you having scored an undisputed decisive victory, it's best not to waste precious time celebrating but instead to frantically begin digging foxholes so there will be some survivors in the event of possible aerial "carpet bombing" runs and to very carefully scan the surrounding hilltops for signs that your enemy has taken the high ground during the night.

    Many issues around the Second Amendment remain undecided. My non-lawyer mind believes that the biggest may be what level of scrutiny - for example strict or intermediate - will laws be subject to review under the Second Amendment. Such issues are something the legislative process has no direct power over now -- there is of course long term indirect political power that comes from the nomination and confirmation of Supreme Court Justices that have a bias one way or the other with respect to the Second Amendment.

    Over the coming years, I expect we will see many existing gun control laws struck down -- to be replaced by more uniform and less burdensome ones. However, anything passed after Heller and McDonald is ripe for immediate challenge. It seems (and I could be mistaken) that courts are more willing to issue an injunction to delay implementation of a new law pending a final decision on its constitutionality than to suspend enforcement of longstanding laws pending such a decision.

    It's entirely possible that the NRA et al are being strategic here and that it would be a mistake to continue to respond as before.

    They may just be standing by while new gun control laws are passed in an emotional response to last week's events in Newtown. Indeed, they may well be hoping that these laws are as far reaching as possible. Upon passage, they then may pick the most "egregious" (in their view) ones, seek (and likely be granted) an injunction delaying their implementation, and move the challenges as quickly as possible to the SCOTUS (hoping to get a circuit split on key issues which pretty much insures the SCOTUS will take the case and, therefore, have to rule on those issues).

    The NRA probably wants the current SCOTUS to hear such cases as both Heller and McDonald were 5-4. However, even the less conservative members of the SCOTUS who dissented in Heller and McDonald are bound by those decisions.

    I suspect that the NRA is salivating at the possibility of California passing legislation that requires a permit to purchase ammunition and that the permit holder must pay for that permit (estimated to be about $50 annually). That's a slam dunk loss at SCOTUS under Heller (just as a poll tax, or a ban on driving cars over five years old on election day would be, or requiring a permit and fee for three or more people to assemble on private property would be) and it would probably be a 9-0 loss.

    I think that may be what is at play here - not evidence of capitulation by the NRA et al. Be careful what you assume. Remember, it's (12 dimensional?) chess, not tic-tac-toe.

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