By Jeff Knox
Manassas, VA –-(Ammoland.com)- Alan Gottlieb, founder and Executive Vice-President of the Second Amendment Foundation, or SAF, likes to say that he and his team are “winning back firearms freedoms one lawsuit at a time,” and they’ve been doing a bang-up job of it.
In the wake of the critical victory in the Supreme Court in the Heller case, Gottlieb teamed up with Heller lead attorney Alan Gura to bring cases against the City of Chicago and several city suburbs over their outright bans on handgun possession, and a suit against a handgun ban by the city of San Francisco.
Since then SAF, which already had a pretty solid track record for filing and winning litigation, and Gura have ramped up their efforts filing dozens of court challenges to restrictive gun laws nationwide.
At the time of the Heller victory in 2008, I commented that, while I believe litigation is important, I felt that litigation was a long, slow process that would take decades to produce meaningful results. What has transpired in the few years since that landmark decision has been nothing short of astounding. Gun bans and egregious restrictions have fallen like dominoes as Gottlieb and Gura have led a loosely associated army of attorneys in a strategy of selective and narrowly targeted litigation in which each victory lays the groundwork for the next court challenge.
While the progress made has not been fast enough or gone far enough to satisfy some, the firm foundation being laid will serve gun owners well for decades to come – if the Supreme Court doesn’t back-pedal on Heller and McDonald.
While Heller left tons of room for interpretation and plenty of ambiguous commentary to give lower courts openings to uphold onerous gun laws – which they have done repeatedly – it laid down some very clear and solid footings on which to build cases for full restoration of the right to arms. Before such cases could be brought though, it had to be established that the Second Amendment is enforceable against the states. That was the focus of the SAF lawsuit against Chicago. In McDonald v. Chicago, the Court “incorporated” the Second Amendment as a “fundamental right” enforceable against the states; setting the stage for further litigation.
Rather than jump in with both feet as many wanted them to do, Gura and cooperating attorneys moved carefully and selectively; going after the most egregious and unsupportable laws first, establishing fundamental precedents and then using those precedents to win the next case.
Danger – Bad Precedents Ahead
While things have moved much faster than I would have ever dreamed possible, it is still a plodding and ponderous process with many pitfalls along the way. One of the problems is that criminal defense attorneys and over-zealous Second Amendment advocates keep bringing broad sweeping cases trying to overturn criminal convictions or wipe out a wide-ranging array of gun control laws in one fell swoop. The result has been numerous bad precedents as judges, often fearful of opening criminal and/or civil floodgates, have used some pretty far-fetched legal reasoning to maintain the status quo. They are able to do this because certain definitions and principles have not yet been solidly established – that’s what’s at the heart of the SAF-Gura strategy.
By keeping their cases narrow and focused on fundamentals they leave little room for equivocation on the part of judges. Each win establishes a precedent which must then be followed by other judges, in effect boxing them in and forcing them to deliver the decisions they should. It also has the advantage of accomplishing goals incrementally, with each case only affecting a relatively small number of people and laws. By the time the “big” cases come up, limits and exceptions have already been defined and the impact of the case has been narrowed by the successive cases leading up to it.
This means that there is less concern about sweeping decisions forcing the release of convicted murderers or generating a flood of nuisance appeals from genuine criminal miscreants.
SAF is not the only game in town when it comes to firearm rights litigation, but they have taken the lead, with almost 20 active cases, and are charting the course to victory in the courts. In cases where SAF is not a plaintiff they often provide “friend of the court” briefs, and their attorneys are often involved behind the scenes helping to guide cases. The dividends of this strategy have been rolling in with several important victories just in the past few months. In March alone SAF won cases in Maryland, Washington, North Carolina, and Massachusetts. They have also cooperated and supported important winning cases in Colorado, Oregon, and Illinois – as well as others – this year.
Some of these cases will be appealed and could go all the way to the US Supreme Court. This highlights the importance of maintaining at least the current 5-4 pro-Second Amendment majority on the Court.
The Firearms Coalition is a loose-knit coalition of individual Second Amendment activists, clubs and civil rights organizations. Founded by Neal Knox in 1984, the organization provides support to grassroots activists in the form of education, analysis of current issues, and with a historical perspective of the gun rights movement. The Firearms Coalition is a project of Neal Knox Associates, Manassas, VA. Visit: www.FirearmsCoalition.org